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THE  EVOLUTION 

OF  THE    CONSTITUTION    OF   THE 

UNITED  STATES  OF  AMERICA 

AND 
HISTORY   OF   THE   MONROE    DOCTRINE 


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f 


^ESEUI^ 


or 


THE 


or 


THE  EVOLUTION  OF 

THE    CONSTITUTION    OF 

THE   UNITED    STATES 

OF  AMERICA 

AND 

HISTORY   OF   THE 
MONROE    DOCTRINE 

BY 

JOHN  A.  KASSON,   LL.D. 


/       or  THE 

UNIVERSITY 

BOSTON   AND   NEW   YORK    . 
HOUGHTON,    MIFFLIN    AND    COMPANY 

1904 


(\^ 


1'^ 


PiESE 


Published  Novemhtr  iqo4 


PREFACE 

The  following  story  of  the  Evolution  of  the 
Constitution  of  the  United  States  of  Amer- 
ica was  originally  written  by  request  of  the 
Constitutional  Centennial  Commission,  under 
whose  auspices  the  first  centennial  of  its  for- 
mation was  celebrated  at  Philadelphia  in  1887, 
in  presence  of  representatives  of  the  States 
and  of  the  Nation.  The  first  edition  was  pub- 
lished as  a  part  of  the  two  memorial  volumes, 
in  large  octavo  and  fully  illustrated,  in  a  form 
and  at  a  cost  which  precluded  popular  circula- 
tion. That  edition  was  soon  exhausted,  and 
only  occasionally  can  a  copy  be  now  obtained 
at  any  price.  Some  desire  has  been  expressed 
by  its  readers  for  a  new  edition  adapted  to 
more  general  circulation  among  the  people, 
and  especially  for  the  use  of  students  of  consti- 
tutional law. 

It  is  to  meet  this  requirement  that  the  present 
edition  has  been  prepared,  after  revision  and 
some  slight  additions  to  the  text.  But  there 
has  been  no  departure  from  the  original  plan. 
This  embraced  a  clear  but  condensed  recital 


i-i> 


vi  PREFACE 

of  the  conditions  preliminary  to  the  "  Confed- 
eracy ; "  a  statement  of  the  infirmities  and  in- 
effectiveness of  the  Articles  of  Coft/ederatiofi, 
upon  which  the  founders  sought  in  vain  to 
build  a  practical  government;  its  entire  failure 
as  a  national  bond,  and  the  recognition  of  that 
failure  by  the  patriots  of  the  Revolution ;  the 
successive  steps  by  which  they  sought  the  con- 
sent of  the  States  to  a  general  convention  to 
provide  a  substitute  government ;  and  finally, 
the  manner  in  which  they  accomplished  the 
organization  of  a  nation.  The  leading  con- 
tested clauses  of  the  Constitution  are  consid- 
ered separately,  and  the  great  points  of  the 
debate  connected  with  each  are  given.  Thus  a 
very  clear  light  is  thrown  upon  the  object  and 
scope  of  each  important  section  of  the  Consti- 
tution, and  its  true  interpretation  is  greatly 
facilitated,  and  in  most  cases  assured. 

This  edition  is  submitted  to  public  consid- 
eration in  the  hope  that  it  will  be  found  not 
only  interesting  to  the  lover  of  history,  but 
especially  useful  to  the  busy  man  in  public  life, 
in  and  out  of  Congress,  who  has  no  time  for 
elaborate  research ;  and  to  the  students  of  pub- 
lic law  in  the  universities,  colleges,  and  law 
schools  of  the  country. 


PREFACE  vii 

The  Author  also  ventures  to  hope  that  a 
clearer  and  more  widely  diffused  knowledge 
of  the  great  intellectual  struggle  which  cul- 
minated in  the  adoption  of  the  Constitution 
will  stimulate  popular  devotion  to  its  princi- 
ples, and  a  loving  loyalty  to  this  sovereign 
Charter  of  our  American  liberty.  We  recall 
with  glowing  gratitude  the  virtues  of  our  great 
ancestors  who  founded  the  government,  and  of 
whose  labors  we  have  inherited  the  splendid 
fruits.  The  habit  of  liberty  and  the  long  usage 
of  prosperity  have  always  a  tendency  to  deaden 
our  remembrance  of  the  greatness  of  the  Act 
which  inaugurated  both,  and  which  still  pre- 
serves them  to  us.  Let  not  the  lapse  of  time 
banish  the  memory  of  our  mighty  fathers,  to 
whose  persistent  courage,  wisdom,  and  patience 
we  owe  our  rich  political  inheritance.  They 
won  it  in  the  storm  of  battle,  and  through  the 
tedious  trials  of  self-sacrifice.  They  rescued  it 
from  anarchy,  bankruptcy,  disorder,  and  dis- 
cords, which  more  than  a  century  ago  had 
brought  upon  our  loosely  confederated  States 
the  pity  of  their  friends  and  the  disdain  of 
their  foes.  The  vital  forces  which  this  consti- 
tutional union  created  gave  to  our  country  the 
purer  breath  of  a  national  life,  and  the  senti- 


viii  PREFACE 

ment  of  national  honor.  The  Union  supple- 
mented the  weakness  of  each  with  the  strength 
of  all.  Instead  of  sectional  banners  stained 
with  repudiation  and  local  greed,  this  consti- 
tutional Union  gave  to  the  whole  country  a 
single  flag,  destined  to  unsurpassed  respect 
among  the  nations  of  the  earth.  Year  after 
year  we  add  new  stars  to  its  folds  as  peacefully 
as  appears  a  new  star  in  the  heavens  from 
which  we  borrowed  them. 

Surely  a  system  of  government  which  has 
established  the  essential  liberties  of  the  people 
under  the  orderly  limitations  of  fundamental 
law,  and  which  has  approved  itself  to  succes- 
sive generations  by  an  unparalleled  experience 
of  national  growth,  prosperity,  and  happiness 
under  its  provisions,  will  never  cease  to  be  a 
most  interesting  study  alike  for  statesmen  and 
students. 

That  part  of  American  foreign  policy  known 
as  the  Monroe  Doctrine  has  acquired  so  much 
authority,  both  at  home  and  abroad,  that  its  in- 
fluence over  our  people  and  their  representative 
statesmen  has  become  almost  equal  to  that  of 
a  provision  of  the  national  Constitution.  I  have 
therefore  added  to  this  volume  a  history  of  the 


PREFACE  ix 

origin  and  development  of  that  Doctrine, 
mainly  derived  from  the  original  records  on  file 
in  the  Department  of  State  at  Washington. 

John  A.  Kasson. 

Washington,  October  i,  1904. 


CONTENTS 

Pagbs 
I 

INTRODUCTORY 3-5 

II. 

THE  PRELIMINARIES  OF  THE  CON- 
FEDERACY     6-17 

New  England  plan  (1643). 

Penn's  plan  (1697). 

Franklin's  plan  (1750). 

Otis's  proposition  (1764). 

Continental  Congress  (12  Colonies)  (i774)« 

Hawley's  plan  (1775). 

Paine's  plan  (1776). 

Colonial  Congress  (1776). 

DECLARATION   OF    INDEPENDENCE 

Was  national  act  of  the  whole,  not  an  act  of 

the  several  Colonies. 
No  one  Colony  separately  independent. 
This   Declaration   only  national  bond   until 

Articles  of  Confederation  were  accepted  by 

the  last  State  (1781). 
Washington's  lament. 
No  real  central  government. 
Demands  for  a  stronger  government. 
Congress  not  vested  with  sufficient  power. 
Confederation  finally  ratified. 


xu  CONTENTS 

III 

THE  ARTICLES  OF  CONFEDERA- 
TION, 1781 18-25 

Provisions  of  the  Compact. 
Causes  of  its  weakness. 

IV 

PRELIMINARIES  OF  THE  CONSTI- 
TUTIONAL CONVENTION  OF 
1787 26-52 

Washington's  demand  for  more  power  in 
Congress. 

Reluctance  of  States  to  grant  it. 

Conditions  growing  worse  under  the  Con- 
federation. 

New  York  in  favor  of  a  new  Convention  of 
States  (July,  1782). 

Virginia's  adverse  action  and  its  effects. 

Washington's  circular  letter  to  the  States. 

Infirm  and  dissolving  Congress  (1784). 

1785  a  year  of  disaster  to  industry  and  com- 
merce. 

Disorderly  financial  system  in  States,  and 
unjust  laws. 

Convention  of  five  States  at  Annapolis 
(1786). 

Deplorable  condition  of  the  people. 

Annapolis  recommendation  of  general  Con- 
vention of  all  States  to  be  held  at  Phila- 
delphia approved  by  Congress. 

Action  thereon  by  the  States. 

General  demoralization  of  political  con- 
duct. 


CONTENTS  xiii 


THE    CONSTITUTIONAL   CONVEN- 
TION            53-72 

The  character  of  its  members. 
Roll  of  delegates  present. 
Their  origin  and  character. 
Sessions  secret,  and  why. 
'  Virginia's  plan. 
Individual  schemes. 

Schemes  of  New  Jersey  and  Connecticut. 
Plan  of  Virginia  in  detail. 
Plan  of  Connecticut  in  detail. 
Plan  of  New  Jersey  in  detail. 
Fundamental  division  in  Convention  for  a 

National  or  Federal  Government. 
The  former  prevails. 

VI 

THE   DEBATE   ON   THE   LEGISLA- 
TIVE  ORGANIZATION     .     .     .      73^1 

To  consist  of  two  Houses. 
How  to  be  chosen. 
Arguments  of  different  statesmen. 
Discordant  demands,  apparently  irreconcil- 
able. 
Committee  of  conciliation. 
The  old  States  fear  future  new  States. 

VII 

THE  DEBATE   ON  THE  JUDICIAL 

ORGANIZATION 92-95 

Appointment  and  removal  of  judges. 
Extent  of  jurisdiction. 
Trial  of  impeachments. 


xiv  CONTENTS 

VIII 

ORGANIZATION  OF  THE  EXECU- 
TIVE  POWER 9^113 

Election  of  the  Chief  Executive  by  Legisla- 
ture, or  by  Electors,  or  by  Governors  of 
States  ? 

Should  the  authority  be  vested  in  a  single 
or  plural  Executive  ? 

Discordant  views,  also,  as  to  removability, 
responsibility  to  Legislature,  term  of 
office,  and  veto  power. 

Question  of  ineligibility  to  a  second  term. 

How  removable  for  misconduct. 

Result  of  the  protracted  debate. 


IX 

OTHER   SPECIAL  PROVISIONS   OF 

THE   CONSTITUTION       .     .     .114-198 

The   questions   of  fundamental    principle 

settled. 
The  Committee  of  Detail  appointed. 
Report  of  form  of  Constitution  and  detail. 
Its  characteristics. 
Votes  on  different  clauses. 
Who  should  be  qualified  voters. 
Ratio  of  representation. 
Washington's  only  participation  in  debate. 
Congress  to  control  national  elections. 
Debate  on  national  control  of  militia. 
A  Council  of  State  proposed. 
Jurisdiction  over  sumptuary  laws. 
Jurisdiction  of  treason. 
The  war  power. 


CONTENTS  XV 

Question  of  power  over  corporations  and 
internal  improvements. 

The  trial  of  impeachments. 

Control  of  congressional  elections. 

Compensation  of  members  of  Congress. 

Question  of  taxing  exports. 

Debate  on  the  regulation  of  foreign  and  in- 
terstate commerce. 

Taxation  of  commerce  for  protection  or  for 
revenue  ? 

Debate  on  bills  of  credit  and  legal-tender 
money. 

POWER   TO  MAKE   TREATIES  AND  THEIR   FORCE 

Various  depositories  of  this  power  proposed. 

Question  of  requiring  ratification  of  treaties 
by  law. 

The  House  of  Representatives  excluded 
from  participation  by  vote  of  ten  States 
to  one. 

Question  of  majority  of  senators  required 
to  ratify. 

President  Washington's  construction  of  the 
treaty-making  power,  the  House  of  Re- 
presentatives excluded. 

Decision  of  Supreme  Court  —  Treaties  may 
supersede  prior  laws,  and  laws  may  super- 
sede prior  treaties. 

RIGHT   TO   ORIGINATE  MONEY  BILLS 

Effort  to  confine  revenue  and  appropria- 
tions to  House  of  Representatives. 

Distinction  between  revenue  and  appropri- 
ation bills. 

Exclusive  right  of  House  of  Representa- 
tives limited  to  revenue  bills. 


ji  CONTENTS 

ADMISSION   OF   NEW   STATES 

Fear  of  influence  of  new  States  in  the  West. 
Limitations  proposed  to  preserve  control  of 

old  States  in  Congress. 
Number  admitted  to  be  limited. 
To  impose  conditions  on  admission. 
Final  conclusion. 

NATIONAL  CONTROL  OVER  STATES 

Right  to  negative  state  laws. 

Proposal  of  Virginia. 

Right  to  use  national  force  against  States. 

Resolution  to  declare  laws  of  the  Union 

supreme  and  to  use  militia  to  enforce 

them. 

GUARANTEE  OF  REPUBLICAN  FORM  OF  GOVERN- 
MENT TO  THE  STATES  AND  AGAINST  INSUR- 
RECTION 

Debate. 
Conclusion. 

MODE  OF  RATIFICATION  OF  THE  CONSTITUTION 

By  the  state  legislatures,  or  by  the  people  ? 

The  fundamental  question  again. 

The  debate  and  decision. 

Number  of  States  required  to  ratify. 

OATHS  OF  STATE  OFFICERS  TO  SUPPORT  THE 
CONSTITUTION 

The  debate  and  the  motive. 

SIGNATURE  AND  PUBLICATION  OF  CONSTITUTION 

Final  effort  to  amend  the  final  draft. 
"  Shall  the  Constitution  as   amended  be 
adopted  ? " 


CONTENTS  xvii 

A  solemn  moment. 

Desire  for  unanimity  in  signature. 

Franklin's  appeal. 

Three  members  present  refuse  to  sign. 

Letter  accompanying  its  transmission  to 
the  States  through  the  Confederate  Con- 
gress. 

Hostility  in  the  Congress. 

Transmission  to  the  States. 


THE  ACTION  OF  THE   STATES  IN 

RATIFICATION 199-206 

The  two  questions. 
Activity  of  enemies  of  Constitution. 
Leaders  on  both  sides  enter  contest. 
Votes  of  the  different  States. 
Action  of  Virginia  and  New  York. 

XI 

SEQUEL  OF  AMENDMENTS    .     .     .207-212 

Twelve  Amendments  proposed  by  the  first 

Congress. 
Ten  of  them  adopted  by  ten  States. 
Eleventh  Amendment  (proposed  by  third 

Congress)  dilatorily  adopted  by  vote  of 

twelve  States  (1798). 
Twelfth  Amendment  adopted  (1804). 
Thirteenth,     Fourteenth,     and     Fifteenth 

Amendments  adopted  (1865,  1866,  1870). 
Varying  tide  of  public  opinion. 
Conclusion. 


xviii  CONTENTS 

APPENDIX 

RIGHT  OF  HOUSES  OF  CONGRESS 
TO  REQUIRE  FROM  THE  EX- 
ECUTIVE DOCUMENTS  OR 
INFORMATION  ? 215-220 

HISTORY  OF  THE  MONROE  DOC- 
TRINE     221-273 

I.  The  History  of  the  Monroe  Dec- 
laration OF  1823 223 

II.  The  Monroe  Doctrine  in  Later 

Years 249 


THE   EVOLUTION   OF  THE 
UNITED   STATES  CONSTITUTION 


THE   EVOLUTION  OF  THE 
UNITED  STATES   CONSTITUTION 


INTRODUCTORY 

The  political  debates  of  the  present  genera- 
tion leave  a  painful  impression  of  the  neglect 
of  constitutional  study.  A  failure  to  appre- 
hend the  reasons  upon  which  constitutional 
provisions  were  founded  has  too  frequently 
led  astray  the  public  judgment.  In  this  neg- 
lect numerous  theories  of  construction  have 
found  their  source,  which  in  turn  have  led  to 
additional  debate,  until  the  public  records  of 
discussion  on  constitutional  questions  have  be- 
come a  massive  collection,  which  obscures,  far 
more  than  it  enlightens,  the  popular  mind.  In 
politics,  as  in  religion,  the  commentaries  have 
superseded  the  authority,  as  they  have  dark- 
ened the  simplicity,  of  the  original  text.  It  has 
become  a  duty  of  patriotism  to  awaken  the 
spirit  of  constitutional  inquiry,  emancipated 
from  the  prejudices  of  party. 

The  existing  histories  of  the  Constitution, 
and  the  legal  commentaries  upon  it,  afford  am- 


4         EVOLUTION   OF  THE  CONSTITUTION 

pie  material  for  forming  a  correct  judgment 
But,  unfortunately  for  the  general  public,  they 
are  too  voluminous  or  too  expensive  for  the 
attainment  of  a  wide  circulation  among  the 
people.  The  Constitutional  Centennial  Com- 
mission, therefore,  thought  it  wise  to  add  to 
their  work  commemorating  the  great  anniver- 
sary a  condensed  history  of  that  instrument, 
which  even  the  busy  American  people  may 
find  time  to  read. 

They  especially  appeal  to  the  youth  and  to 
the  young  manhood  of  the  country,  now  pre- 
paring in  the  schools  and  universities  for  the 
higher  duties  and  functions  of  citizenship,  to 
abandon  the  study  of  the  superficial  theories 
of  modern  party  politics  for  the  nobler  study 
and  profounder  thoughts  of  our  constitutional 
Fathers,  —  the  creators  of  our  free  and  power- 
ful government  and  the  founders  of  a  republic 
which  in  a  single  century  has  advanced  to  the 
foremost  rank  of  nations. 

The  present  union  of  the  States,  for  which 
the  Fathers  so  long  struggled  against  recipro- 
cal fears  and  jealousies,  and  amidst  clashing 
interests,  will  be  perfected  in  proportion  as  we 
agree  in  our  appreciation  of  the  Constitution 
which  created  and  preserves  it. 

All  vigorous  and  harmonious  national  life 
demands  some  object  of  common  reverence 
and  devotion.    In  monarchical  countries  this 


INTRODUCTORY  5 

object  is  the  Crown,  or  the  person  on  whose 
head  it  rests.  In  our  republic  no  living  Presi- 
dent, accepted  or  rejected  as  he  is  by  a  varying 
majority  and  at  frequent  intervals,  can  ever 
become  the  object  of  general  and  concentrated 
respect  and  affection.  It  is  the  great  Charter 
bequeathed  to  us  by  our  Fathers,  and  that 
alone,  which  can  give  to  our  whole  country  its 
central  object  of  obedience  and  reverence, — 
an  object  which  shall  rise  above  all  the  chan- 
ging purposes  and  alliances  of  the  passing  hour. 
It  stands  supreme,  above  us  all,  ruling  our 
rulers  and  receiving  their  oath-bound  allegi- 
ance. It  is  surrounded  by  many  guards  against 
the  assaults  of  transient  human  passion  and 
the  aggression  of  man's  selfish  ambitions.  It 
rises  imperially  above  the  Congress,  the  Courts, 
and  the  President.  It  was  living  before  we 
came,  it  will  live  after  we  depart.  There  it 
stands,  and  is  ordained  to  remain,  immovable, 
unchangeable,  save  in  accordance  with  the 
laws  of  its  own  life,  grand  in  its  simplicity, 
majestic  in  its  power.  To  this  only  Sovereign 
of  our  jurisdiction  and  Lord  Protector  of  our 
rights  and  liberties  our  allegiance  and  our  devo- 
tion are  worthily  consecrated.  May  the  youth 
of  our  time,  when  they  shall  be  seated  in  the 
places  of  trust  and  authority,  show  themselves 
the  enlightened  and  willing  servants  of  this 
immortal  Sovereign. 


II 

THE  PRELIMINARIES  OF  THE  CONFEDERACY 

The  Act  which  was  signed  at  Philadelphia  on 
September  17,  1787,  was  not  so  much  a  sudden 
creation,  an  inspired  fact  of  that  memorable 
year,  as  it  was  a  logical  growth  out  of  many 
years  of  thoughtful  and  painful  experience. 

The  principles  of  that  nationalized  union 
which  the  Constitution  accomplished  had  al- 
ready been  stirring  in  the  breasts  of  the  wise 
and  the  patriotic  for  three  generations.  As 
far  back  as  1643,  ^^^^  weak  colonies  in  New 
England  combined  in  a  union  for  their  defence 
against  all  common  dangers,  and  provided  for 
its  continuance  by  a  common  parliament.  In 
1697,  William  Penn  proposed  an  annual  "  con- 
gress," consisting  of  two  delegates  from  each 
colony.  They  were  to  have  power  to  provide 
ways  and  means  for  supporting  their  union, 
maintaining  their  common  safety,  and  regu- 
lating their  commerce.  In  1754,  Franklin 
prepared  a  plan  for  the  union  of  the  col- 
onies, with  a  triennial  legislature,  and  a  gov- 
ernor-general to  be  appointed  by  the  English 
government.  Each  colony  was  to  retain  the 
control  of  its  exclusively  domestic  affairs.    A 


PRELIMINARIES  OF  THE  CONFEDERACY     7 

decade  later,  James  Otis,  in  the  Massachusetts 
Assembly,  pronounced  for  an  American  con- 
gress in  such  emphatic  tones  that  delegates 
from  nine  of  the  colonies  were  induced  to 
assemble  in  New  York  in  1765,  to  consider 
their  common  interests  and  to  protest  against 
imperial  taxation. 

The  activity  of  British  parliamentary  aggres- 
sion increased.  In  like  proportion  the  spirit 
of  American  union  became  more  active ;  and 
in  1774  the  delegates  from  the  inhabitants  of 
twelve  colonies  met,  as  a  Continental  Congress, 
for  the  protection  of  their  common  rights.  The 
conception  of  a  continental,  or  American, 
union  and  legislature  was  becoming  more  and 
more  familiar  to  the  people.  In  1775,  Joseph 
Hawley  proposed  an  annual  parliament  with 
two  Houses. 

In  January,  1776,  there  appeared  a  pam- 
phlet from  the  hand  of  Thomas  Paine,  in 
which  he  advocated  with  all  the  vigor  and 
terseness  of  his  unsurpassed  rhetoric  a  more 
resolute  advance.  "  Let  a  continental  confer- 
ence be  held,"  said  he,  "  to  frame  a  continental 
charter,  drawing  the  line  of  business  and  juris- 
diction between  members  of  Congress  and 
members  of  Assembly,  always  remembering 
that  our  strength  and  happiness  are  conti- 
nental, not  provincial.  .  .  .  We  have  every 
opportunity  and  every  encouragement  to  form 


8  EVOLUTION   OF  THE   CONSTITUTION 

the  noblest,  purest  Constitution  on  the  face 
of  the  earth."  The  convention  which  he  pro- 
posed for  this  end  was  to  consist  of  two  mem- 
bers for  each  corporate  colony,  chosen  by 
its  legislature,  like  senators  in  the  present 
Congress;  two  more  to  be  chosen  by  the 
Colonial  Congress  out  of  each  colonial  dele- 
gation; and  a  larger  number  to  be  chosen 
directly  by  the  people,  like  the  present  House 
of  Representatives. 

Six  months  later  the  Colonial  Congress,  in 
which  now  all  the  thirteen  colonies  were  repre- 
sented, denounced  the  dominion  of  England, 
and  declared  their  own  complete  and  final 
independence. 

In  discussing  the  nature  of  our  union  of 
States,  whether  perpetual  or  dissoluble  at  the 
will  of  its  members,  the  disputants  have  not 
attached  sufficient  significance  to  this  great 
act  of  the  4th  of  July,  1776. 

It  was  not  a  declaration  of  independence  by 
each  separate  colony  as  a  distinct  civil  corpo- 
ration. It  was  a  joint  and  national  act,  the  act 
of  "  ONE  PEOPLE,  to  dissolvc  the  political  bands 
which  have  connected  them  with  another,  and 
to  assume,  among  the  powers  of  the  earth,  the 
separate  and  equal  station  to  which  the  laws 
of  nature  and  of  nature's  God  entitle  them." 
The  colonies,  separately,  did  not  proclaim  their 
independence  nor  claim  among  the  powers  of 


PRELIMINARIES   OF  THE   CONFEDERACY     9 

the  earth  a  separate  and  equal  station.  It  was 
a  united  national  act  which  dissolved  all  their 
provincial  obligations.  "  We,  therefore,  the  re- 
presentatives of  the  United  States  of  Amer- 
ica, in  general  Congress  assembled,  ...  do,  in 
the  name,  and  by  the  authority  of  the  good 
PEOPLE  of  these  colonies,  solemnly  publish  and 
declare  "  freedom,  independence,  and  the  abso- 
lution of  allegiance  to  the  British  crown,  with 
"  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  do  all  other 
acts  and  things  which  independent  States  may 
of  right  do."  All  these  rights  and  powers  were 
declared  to  be  in  the  "  United,"  not  the  indi- 
vidual. States. 

This  conception  of  their  act  frequently  ap- 
pears in  the  debates  of  the  Constitutional 
Convention  and  in  later  debates.  In  the  South 
Carolina  Legislature,  in  i  y88y  on  the  question 
of  calling  a  convention  to  ratify  the  new  Union, 
one  of  their  most  notable  statesmen,  Charles 
Cotesworth  Pinckney,  speaking  of  the  Decla- 
ration of  Independence,  said :  "  This  admirable 
manifesto  sufficiently  refutes  the  doctrine  of 
the  individual  sovereignty  and  independence 
of  the  several  States.  .  .  .  The  separate  inde- 
pendence and  individual  sovereignty  of  the 
several  States  were  never  thought  of  by  the 
enlightened  band  of  patriots  who  framed  this 
Declaration.   The  several  States  are  not  even 


10        EVOLUTION   OF  THE  CONSTITUTION 

mentioned  by  name  in  any  part.  .  .  .  Let  us 
then  consider  all  attempts  to  weaken  this  union, 
by  maintaining  that  each  State  is  separately 
and  individually  independent,  as  a  species  of 
political  heresy  which  can  never  benefit  us,  but 
may  bring  on  us  the  most  serious  distresses." 
An  argument  and  a  prophecy  in  one  statement. 

The  Declaration  formed  the  only  constitu- 
tion or  written  bond  of  the  independent  United 
States  until  the  last  State  ratified  the  Articles 
of  Confederation,  March  i,  1781. 

But  the  colonies,  now  States,  did  not  pro- 
ceed upon  that  theory  of  united  rights  to  its 
logical  result  of  fortifying  the  central  author- 
ities. Having  a  history  of  both  separate  and 
joint  resistance  to  a  common  sovereign  in 
England,  they  were  jealous  of  any  centralized 
power  which  was  not  aimed  sharply  and  di- 
rectly against  the  military  power  from  which 
they  sought  deliverance.  Some  of  them,  being 
more  liable  to  invasion  and  plunder  than  others, 
were  unwilling  even  to  allow  central  control  of 
the  military  forces  and  operations.  Communi- 
cations with  many  of  the  colonies  were  limited 
and  difficult,  and  personal  knowledge  of  lead- 
ers insufficient  to  secure  confidence.  Military 
organization  was  everywhere  local.  Local  jeal- 
ousies were  easily  inflamed,  and  personal  ambi- 
tions were  abundant.  Local  appeals  to  protect 
home  interests  only  were  largely  effective  in 


PRELIMINARIES   OF  THE   CONFEDERACY    ii 

closing  the  eyes  of  the  people  to  the  greater 
proposition,  that  local  interests  could  only  be 
permanently  protected  by  a  common  devotion 
to  the  general  and  united  interests.  They  could 
not  understand  that  a  central  power,  located  in 
Philadelphia  or  Annapolis,  could  watch  equally 
well  the  coasts  of  Rhode  Island  and  of  Vir- 
ginia, or  apply  equally  just  regulations  of  com- 
merce to  New  York  and  South  Carolina.  The 
obstacles  to  the  creation  of  an  effective  legis- 
lative and  executive  power  over  all  the  States 
were  enormous,  and  appeared  insurmountable. 
While  their  independence  was  national,  their 
personal  aspirations  were  still  provincial.  They 
could  not  agree  upon  the  terms  of  a  league  or 
confederation.  Congress  had  proposed  Articles 
of  Confederation,  vesting  very  limited,  but  in- 
herent, powers  in  Congress,  in  1777.  But  the 
war  was  nearly  over  before  their  acceptance 
by  all  the  States. 

The  primary  cause  of  this  delay  is  to  be 
found  in  the  fact  that  Congress  was  not  elected 
by  the  people.  Its  members  were  simple  dele- 
gates of  the  provincial  authority,  and  revocable 
at  will,  like  diplomatic  agents.  They  had  no 
inherent  authority.  The  strongest  and  ablest 
men  remained  largely  at  home,  preferring 
the  dignity  of  the  controlling  authority  in 
the  State  to  that  of  a  subordinate  agent  at 
Philadelphia. 


12        EVOLUTION   OF  THE   CONSTITUTION 

Washington  made  urgent  appeals  on  this 
subject,  especially  to  his  friends  in  Virginia. 
He  wrote  to  George  Mason  in  1779:  "I  can- 
not refrain  lamenting  in  the  most  poignant 
terms  the  fatal  policy,  too  prevalent  in  most 
of  the  States,  of  employing  their  ablest  men 
at  home  in  posts  of  honor  or  profit  till  the 
great  national  interest  is  fixed  upon  a  solid 
basis.  .  .  .  Where  are  our  men  of  abilities  ? 
Why  do  they  not  come  forth  to  save  our 
country  ?  Let  this  voice,  my  dear  sir,  call 
upon  you,  Jefferson,  and  others."  He  had 
before  appealed  to  Harrison,  Wythe,  Nicholas, 
Pendleton,  and  Nelson  "  not  to  be  satisfied 
with  places  in  their  own  State  while  the  com- 
mon interests  of  America  were  mouldering 
and  sinking  into  irretrievable  ruin,  but  to 
attend  to  the  momentous  concerns  of  an 
empire." 

Nothing  shows  more  conclusively  than  these 
touching  appeals  from  the  great  heart  of 
Washington  that  the  separate  colonial  States 
did  not  yet  grasp  the  idea  of  a  great  conti- 
nental nation.  The  union  had  become  for 
them  an  organism  designed  only  to  establish 
the  independence  of  the  individual  States. 
Their  vision  was  checked  by  the  boundary-hne 
defined  in  their  colonial  charter.  They  saw 
not  yet  the  finger  of  God  pointing  to  a  grand, 
united  people,  spanning  the  continent  with  a 


PRELIMINARIES   OF   THE   CONFEDERACY    13 

supreme  and  powerful  central  government, 
protecting  popular  liberty,  securing  personal 
rights,  and  symbolized  by  a  starry  flag  with 
which  the  world  should  have  none  to  compare, 
so  radiant  with  hope,  so  illustrious  in  peace, 
and  so  bright  with  promise  to  mankind. 

In  the  mean  time  Congress  remained  a 
mere  adviser  of  the  States.  It  could  only 
recommend  measures  which  the  States  had 
the  liberty  to  adopt  or  reject,  in  whole  or  in 
part.  Congress  had  become  a  beggar  at  their 
doors.  Nothing  is  so  difficult  to  persuade  as 
the  surrender  of  power  by  its  possessors.  The 
States  were  in  fact  assuming  a  sovereign 
power,  and  could  not  be  induced  to  transfer  it 
voluntarily  to  another  authority.  The  force  of 
adversity,  even  of  necessity,  was  required  to 
convince  them  that  only  by  the  surrender 
of  a  part  could  they  possess  the  benefits  of 
the  whole. 

The  leaders  of  the  patriotic  movement  soon 
became  convinced  that  no  combination  of  a 
central  government  could  be  accomplished 
through  the  action  or  the  recommendation  of 
that  Amphictyonic  Council,  styled  a  Congress. 
Mr.  Edward  Rutledge,  as  early  as  August, 
1776,  suggested  to  Robert  R.  Livingston  the 
appointment  by  the  States  of  a  new  and  spe- 
cial Congress  for  the  purpose  of  organizing 
a  confederation.    There  does  not  appear  any 


14        EVOLUTION   OF   THE  CONSTITUTION 

encouraging  echo  to  this  proposition,  from 
any  authoritative  quarter,  until  four  years  later. 
Meantime  Congress  struggled  along  as  best  it 
could,  directing  warlike  and  diplomatic  oper- 
ations through  its  committees,  and  always 
subject  to  the  changing  will  of  the  several 
States,  and  to  their  refusal  or  neglect  of  the 
duties  required  of  them  for  the  general  wel- 
fare. The  difficulties  of  the  situation  became 
more  and  more  apparent  as  the  war  dragged 
its  weary  course,  and  complaints  against  the 
army,  as  well  as  coming  from  the  army,  were 
heard.  In  1 780,  the  four  New  England  States 
gave  expression  to  their  impatience  over  the 
intolerable  condition  of  central  affairs  by  meet- 
ing in  convention  at  Boston,  in  the  month  of 
August.  They  demanded  a  substantial  union, 
with  a  visible  head,  and  a  Congress  "  compe- 
tent for  the  government  of  all  those  common 
and  national  affairs  which  do  not  nor  can 
come  within  the  jurisdiction  of  the  particular 
States."  They  invited  their  own  States  and 
New  York,  with  all  others  disposed  to  come, 
to  meet  in  convention  at  Hartford.  The  follow- 
ing month  Governor  Clinton  recommended 
the  acceptance  of  the  invitation,  saying,  "  Our 
embarrassments  in  the  prosecution  of  the  war 
are  chiefly  to  be  attributed  to  a  defect  of  power 
in  those  who  ought  to  exercise  a  supreme  juris- 
diction ;  for  while  Congress  only  recommends. 


PRELIMINARIES   OF   THE   CONFEDERACY    15 

and  the  different  States  deliberate  upon  the 
propriety  of  the  recommendation,  we  cannot 
expect  a  union  of  force  or  council."  Philip 
Schuyler,  supported  by  the  Senate,  responded 
in  words  the  truth  of  which  has  been  strongly 
reinforced  at  a  later  period  of  our  history: 
"  We  perceive  the  defects  of  the  present  sys- 
tem, and  the  necessity  of  a  supreme  and 
COERCIVE  POWER  in  the  government  of  these 
States ;  and  are  persuaded  that,  unless  Con- 
gress are  authorized  to  direct  uncontrollably 
the  operations  of  war,  and  enabled  to  enforce 
a  compliance  with  their  requisitions,  the  com- 
mon force  can  never  be  properly  united." 
Hamilton  demanded  more  emphatically  an  im- 
mediate convention,  with  full  authority  to  set 
up  a  vigorous  confederation.  General  Greene 
also  expressed  the  feeling  of  the  army  when 
he  wrote  to  a  Congressional  delegate,  "  Call  a 
convention  of  the  States,  and  establish  a  Con- 
gress upon  a  constitutional  footing." 

The  Hartford  Convention  assembled  in 
November,  New  York  only  being  present  with 
the  Eastern  States.  Their  resolutions  were  not 
only  patriotic,  but  statesmanlike.  After  adopt- 
ing propositions  to  strengthen  the  public  credit, 
they  agreed  upon  a  communication  to  be  ad- 
dressed to  all  the  States.  Experience  had  by 
this  time  clearly  shown  that  the  merely  recom- 
mendatory powers  of   Congress  were  wholly 


i6        EVOLUTION  OF  THE   CONSTITUTION 

insufficient  They  must  be  changed  to  man- 
datory. "  All  government  supposes  the  power 
of  coercion,"  they  said ;  "  this  power,  however, 
never  did  exist  in  the  general  government  of 
the  continent,  or  has  never  been  exercised.  . . . 
The  States,  individually  considered,  while  they 
endeavor  to  retain  too  much  of  their  independ- 
ence, may  finally  lose  the  whole. .  .  .  We  shall 
be  without  a  solid  hope  of  peace  and  freedom 
unless  we  are  properly  cemented  among  our- 
selves." An  account  of  all  their  proceedings 
was  transmitted  to  Congress,  and  to  General 
Washington,  as  well  as  to  all  their  sister 
States. 

The  patriotic  earnestness  of  this  convention 
appears  to  have  at  last  moved  the  diverse  minds 
towards  greater  union  and  a  stronger  central 
power.  Their  report  was  read  in  open  Con- 
gress in  December,  and  referred  to  a  com- 
mittee which  embraced  some  of  the  strongest 
members.  Pennsylvania  and  New  Jersey  gave 
further  evidence  of  a  desire  to  increase  the 
powers  of  Congress. 

Finally,  on  March  i,  1781,  amid  expressions 
of  general  satisfaction,  the  last  signature  was 
affixed  to  the  Articles  of  Confederation,  in  the 
presence  of  Congress.  In  view  of  their  rati- 
fication, Mr.  Duane,  of  New  York,  wrote: 
"  Let  us  devote  this  day  to  joy  and  congratu- 
lation, since   by  the   accomplishment  of  our 


PRELIMINARIES   OF   THE   CONFEDERACY    17 

federal  union  we  are  become  a  nation.  In  a 
political  view  it  is  of  more  real  importance 
than  a  victory  over  all  our  enemies."  The 
final  ratification  was  formally  announced  to  the 
several  States,  and  to  diplomatic  agents  abroad 
for  the  information  of  friendly  foreign  govern- 
ments. 

As  we  now  read  these  Articles,  we  are 
amazed  that  they  should  have  been  the  sub- 
ject of  congratulation,  as  if  they  were  the  com- 
pletion of  the  work  of  national  organization. 
Yet  it  is  only  by  an  appreciation  of  the  pat- 
riotic gratification  then  expressed  over  that 
narrow  grant  of  national  power  that  we  can 
understand  the  extent  of  the  reluctance  of  the 
States,  particularly  of  the  delinquent  States, 
to  surrender  for  the  general  welfare  the  least 
share  of  their  newly-acquired  independence. 
Time,  discussion,  experience,  personal  associa- 
tion, all  were  needed  as  ripening  influences  for 
the  real  constitution  and  union  which  were  still 
in  the  bud,  and  still  exposed  to  many  dangers 
of  cold  and  heat.  On  all  affairs  of  serious  im- 
port each  State  would  fain  reserve  a  power  of 
veto.  Local  fear  and  jealousy  lurked  in  every 
paragraph  of  this  frail  bond.  A  review  of  the 
powers  which  it  refused,  or  closely  limited,  will 
disclose  to  us  the  unhappy  condition  in  which 
it  left  a  struggling  but  hopeful  nation. 


in 

THE  ARTICLES   OF  CONFEDERATION,   1781 

Each  State  retained  "every  power,  jurisdiction, 
and  right  not  expressly  delegated."  By  this 
they  prohibited  all  development  induced  by 
the  logic  of  events  and  by  the  necessities  of 
inevitable  growth. 

The  States  agreed  to  defend  each  other 
against  any  attack  made  upon  them,  under 
whatever  pretence. 

The  free  inhabitants  of  one  State  were  to 
have  equal  privileges  of  movement,  trade,  etc., 
in  all  other  States,  subject  only  to  the  prevail- 
ing conditions  of  local  citizens. 

Each  State  was  to  have  one  vote,  and  a 
number  of  delegates  not  less  than  two  nor 
more  than  seven,  all  maintained  at  the  expense 
of  the  State  sending  them,  and  prohibited  from 
receiving  any  salary  or  emolument  from  the 
United  States,  even  if  administering  an  office 
under  them.  The  delegates  were  to  be  an- 
nually appointed,  and  revocable  at  the  will  of 
the  State.  They  were  to  meet  in  Congress  on 
the  first  Monday  of  November  of  each  year. 

The  sixth  article  prohibited  each  State  from 
any  alliance,  treaty,  or  confederation  with  each 


THE  ARTICLES   OF  CONFEDERATION        19 

other,  or  with  a  foreign  State,  without  consent 
of  Congress,  and  from  laying  any  duties  incon- 
sistent with  the  treaties  then  in  negotiation 
with  France  and  Spain.  Commercial  regula- 
tion and  imposts  and  duties  remained  within 
the  power  of  each  State. 

The  several  States  retained  the  right  to  issue 
letters  of  marque  and  commissions  to  vessels 
of  war,  after  war  should  have  been  declared. 
But  the  power  to  make  war  and  peace  was 
vested  in  Congress. 

Taxes  for  war-charges  and  for  the  common 
expenses  were  to  be  laid  and  levied  by  the  in- 
dividual States  in  their  respective  proportions, 
without  power  in  Congress  to  enforce  or  inter- 
fere with  their  collection. 

The  United  States  could  make  no  treaty  of 
commerce  which  should  restrain  a  State  from 
prohibiting  the  exportation  or  importation  of 
any  goods  or  commodities  whatever. 

The  States  retained  the  power  to  coin  money, 
while  granting  the  same  power  to  Congress ; 
but  Congress  might  regulate  the  alloy  and 
value.  The  States  retained  power  also  to  ap- 
point the  regimental  officers  in  the  army  of 
the  United  States. 

The  plan  of  the  confederation  contemplated 
a  government  of  national  affairs  by  special 
committees  of  Congress.  It  could  appoint  one 
of  its  own  members  to  preside ;  but  so  jealous 


20        EVOLUTION   OF  THE   CONSTITUTION 

were  they  of  the  semblance  of  a  single  execu- 
tive that  they  limited  his  service  to  one  year, 
and  made  him  then  ineligible  for  the  two  years 
following,  ignoring  all  the  benefits  of  personal 
experience  in  affairs,  even  in  time  of  war. 

Having  enumerated  the  narrow  powers  which 
Congress  might  exercise,  they  put  upon  that 
body  the  following  further  limitation :  — 

"  The  United  States  in  Congress  assembled 
shall  never  engage  in  a  war ;  nor  grant  letters 
of  marque  and  reprisal  in  time  of  peace ;  nor 
enter  into  any  treaties  or  alliances;  nor  coin 
money ;  nor  regulate  the  value  thereof ;  nor  as- 
certain the  sums  and  expenses  necessary  for 
the  defence  and  welfare  of  the  United  States 
or  any  of  them;  nor  emit  bills;  nor  borrow 
money  on  the  credit  of  the  United  States;  nor 
appropriate  money ;  nor  agree  upon  the  num- 
ber of  vessels  of  war  to  be  built  or  purchased,  or 
the  number  of  land  or  sea  forces  to  be  raised ; 
nor  appoint  a  commander-in-chief  of  the  army 
or  navy ;  unless  nine  States  assent  to  the  same." 
This  required  a  majority  of  two  thirds  for  any 
of  these  acts. 

The  consent  of  nine  of  the  thirteen  States 
was  required  to  vest  any  power  in  the  Gen- 
eral Committee  of  Thirteen,  authorized  to  sit 
in  the  recess  of  Congress ;  and  even  then  no 
power  could  be  delegated  to  this  committee 
which  was  enumerated  in  the  Articles  as  spe- 


THE   ARTICLES   OF  CONFEDERATION        21 

cially  requiring  the  assent  of  nine  States  for  its 
valid  exercise. 

The  Articles  further  declared  that  "the 
Union  shall  be  perpetual ; "  and  styled  the 
compact,  "  Articles  of  Confederation  and  Per- 
petual Union."  No  amendment  could  be  made 
except  by  agreement  of  Congress,  with  the 
ratification  of  every  State.  Each  State  bound 
itself  to  abide  by  the  decisions  of  the  Congress 
in  all  matters  submitted  to  their  jurisdiction 
by  the  Articles  of  Confederation. 

This  "firm  league  of  friendship"  between 
the  States  was  reported  from  a  committee  on 
July  12,  1776,  and  was  under  debate  from  time 
to  time  for  two  years.  At  the  date  of  July  9, 
1 778,  only  ten  States  had  ratified  it.  And  when 
Maryland  completed  the  ratification,  in  March, 
1 78 1,  these  Articles  represented  the  entire 
progress  of  the  country  towards  a  solid  union 
during  the  five  years  of  experience  of  war  and 
weakness  and  inefficiency  of  the  government. 
Justice  demands  of  history  some  explanation 
of  this  unsatisfactory  result,  which  shall  be 
consistent  with  the  undoubted  patriotism  and 
the  unquestioned  intellectual  ability  of  the 
statesmen  of  that  time. 

The  colonies  were  originally  established 
under  the  control  of  different  political  and  reli- 
gious ideas,  and  their  immigration  was  from 
variant  nationalities.   The  New  England  colo- 


22        EVOLUTION   OF  THE   CONSTITUTION 

nies  were  of  more  uniform  composition  than 
any  other  group.  Protestant  individuality  and 
sturdy  personal  independence  were  there  most 
emphasized.  Commerce  became  their  control- 
ling interest.  The  town-meeting,  the  common 
school,  the  church-meeting,  and  the  militia 
formed  the  foundation  of  their  social  organiza- 
tion. The  popular  elements  in  New  York  were 
largely  of  Dutch  origin,  not  given  to  enthusi- 
asm, not  sympathetic,  but  tenacious  of  opinion 
and  of  property  interests.  There  were  found 
large  agricultural  estates  and  seigniorial  rights 
which  divided  the  control  with  commercial  in- 
terests. English  hereditary  characteristics  both 
here  and  in  New  Jersey  mingled  with  and  modi- 
fied those  of  continental  origin.  In  Pennsylva- 
nia the  elements  of  population  were  composite. 
The  English  religious  opinions  and  sentiments 
introduced  by  Penn  influenced  a  more  lethargic 
population  from  continental  Europe,  and  dis- 
posed their  minds  to  the  arts  of  peace  and  the 
love  of  concord.  The  moral  position  of  the  state 
was  that  of  a  mediator.  The  controlling  ele- 
ments in  Virginia  were  of  good  English  origin, 
exercising  a  positive  dominion  over  that  por- 
tion of  the  white  population  which  represented 
an  inferior  immigration  of  questionable  ante- 
cedents. Like  the  trained  leaders  of  New  Eng- 
land, the  educated  leaders  in  Virginia  and  in 
South  Carolina  were  men  of  clear  perceptions, 


THE  ARTICLES   OF  CONFEDERATION        23 

decided  opinions,  and  strongly  attached  to  po- 
litical theories.  The  Southern  States  were 
generally  controlled  in  their  material  interests 
by  the  demands  of  agriculture.  While  slavery 
existed  in  small  degree  in  the  Northern  States, 
it  was  a  powerful  interest  only  in  the  South. 
The  dominant  religious  sentiment  also  varied 
in  the  various  States.  In  some  the  church  and 
schools  were  supported  by  state  taxation,  in 
others  not.  To  these  various  and  often  con- 
flicting  elements  must  be  added  the  pro-slavery 
and  anti-slavery  dissension  already  existing, 
and  not  limited  by  geographical  divisions. 

Besides  these  considerations,  there  existed 
that  natural  distrust  of  strangers,  and  especially 
of  their  influence  in  any  degree  over  domes- 
tic affairs  of  the  different  colonies,  which  can 
only  be  obviated  by  frequent  association  and 
intimate  acquaintance.  The  close  association 
of  the  officers  of  the  army  during  the  war  of 
independence,  their  participation  in  common 
perils  and  struggles  and  for  a  common  object, 
had  with  them  effected  to  a  large  extent  the 
removal  of  this  distrust.  The  movement  for 
a  closer  union  of  the  States  found  among  them 
its  most  ardent  supporters  and  constant  advo- 
cates. Their  descendants,  in  the  Society  <5f 
the  Cincinnati,  commemorate  still  the  patriotic 
efforts  of  their  ancestors  to  accomplish  the 
great  constitutional  union. 


24        EVOLUTION   OF  THE   CONSTITUTION 

The  opposition,  both  inert  and  active,  to  a 
genuine  and  vigorous  national  authority,  ap- 
peared most  uniformly  in  the  local  legislatures, 
and  among  men  who  were  not  personally  en- 
gaged in  the  war.  They  transferred  their  op- 
position towards  alien  English  control  to  alien 
American  control ;  for  they  still  regarded  the 
other  colonies,  in  some  proportion  to  the  dis- 
tance of  their  territory,  as  aliens  and  strangers 
to  their  respective  commonwealths.  Their  con- 
federation itself,  therefore,  was  little  more  than 
a  treaty  between  forced  allies,  who  were  jealous 
of  each  other,  and  would  each  retain  a  veto 
upon  the  acts  of  all,  except  in  those  few  points 
where  the  immediate  danger  from  Europe 
controlled  their  fears  of  domestic  rivalry. 

Nor  was  human  nature  a  century  ago  free 
from  those  imperfections  which  to-day  mark 
the  characteristics  of  our  public  life.  Personal 
envies  and  jealousies  and  competitions  were 
too  rife  for  the  best  expedition  of  public  affairs. 
Personal  criticisms  were  violent  and  often  reck- 
less. In  a  time  of  war,  when  all  the  instruction 
of  history  enforces  the  necessity  of  a  concen- 
tration of  power  in  a  vigorous,  decisive,  central 
authority,  thirteen  authoritative  heads  were 
interposed,  which,  in  turn,  were  subject  to  thir- 
teen other  widely  separated  heads.  No  presid- 
ing officer  could  remain  in  his  place  more  than 
one  year  in  three,  lest  one  man  or  one  State 


THE  ARTICLES   OF  CONFEDERATION        25 

should  offer  talents  and  furnish  experience 
which  might  lead  to  an  excessive  influence  for 
himself  or  his  State.  From  the  perusal  of  the 
records  of  that  epoch  we  rise  with  amazement 
at  the  unshaken  patience,  moderation,  and 
firmness  of  Washington,  who  persistently 
sought  the  establishment  of  confidence  and 
concord,  and  kept  himself  unsullied  and  faith- 
ful amidst  the  virulence,  jealousies,  and  pas- 
sions of  the  time. 


IV 


PRELIMINARIES   OF    THE    CONSTITUTIONAL 
CONVENTION   OF   1787 

The  abler  men  among  the  patriots  then  in 
military  and  civil  life  were  not  deceived  by  any 
fond  hopes  flowing  from  the  adoption  of  this 
instrument.  They  clearly  foresaw  the  difficul- 
ties and  embarrassments  still  interposed  against 
the  successful  administration  of  government, 
alike  in  war  and  peace.  Hardly  had  the  an- 
nouncement of  the  ratification  of  the  Confed- 
eration reached  the  various  state  capitals 
before  the  letters  and  pamphlets  of  the  time 
disclosed  its  defects  and  insufficiency.  Again 
was  heard  a  call  for  a  constitutional  conven- 
tion. Within  a  few  months  from  the  approval 
of  the  Confederacy  by  Maryland  the  dissatis- 
faction found  wide  and  emphatic  expression. 
Washington,  whose  efforts  to  secure  the  organ- 
ization of  a  vigorous  union  and  government 
were  as  constant  as  his  devotion  to  his  weighty 
military  duties,  showed  a  painful  consciousness 
that  the  Confederate  constitution  was  wholly 
inadequate  to  the  demands  of  the  time.  He 
regarded  it  as  chiefly  important  in  completing 
the  formal   alliance   of   the   States.   "  If    the 


PRELIMINARIES   OF  THE   CONVENTION     27 

powers  granted  to  the  head  of  the  States,"  he 
said,  "  are  inadequate,  the  defects  should  be 
considered  and  remedied.  Danger  may  spring 
from  delay.  The  present  temper  of  the  States 
is  friendly  to  the  establishment  of  a  lasting 
union ;  the  moment  should  be  improved ;  if 
suffered  to  pass  away  it  may  never  return; 
and,  after  gloriously  and  successfully  contend- 
ing against  the  usurpations  of  Britain,  we  may 
fall  a  prey  to  our  own  follies  and  disputes.  .  .  . 
A  nominal  head,  which  at  present  is  but  an- 
other name  for  Congress,  will  no  longer  do. 
That  honorable  body  .  .  .  must  dictate,  and  not 
merely  recommend.  .  .  .  Without  a  control- 
ling power  in  Congress  it  will  be  impossible  to 
carry  on  the  war."  Hoping  that  public  affairs 
would  now  put  on  a  different  aspect,  he  added, 
"but  not  unless  Congress  is  vested  with,  or 
will  assume,  greater  powers  than  they  exert  at 
present,  and  will  dispense  them  freely,  upon 
general  principles,  to  the  ministers  of  State." 
He  addressed  himself  in  this  sense,  and  with 
urgency,  to  leaders  in  different  States. 

In  the  mean  time  Congress  itself  had 
appointed  a  second  and  able  committee  to 
examine  the  Articles,  "to  prepare  an  exposi-  ^ 
tion  of  the  Confederation,"  a  plan  for  its 
complete  execution,  and  supplemental  articles. 
This  committee  reported  a  series  of  subjects 
upon  which  laws  should  be  framed  for  the 


28        EVOLUTION   OF  THE   CONSTITUTION 

execution  of  the  Articles,  but  declined  to  make 
an  "  exposition  "  of  the  Articles  for  the  signifi- 
cant reason,  among  others,  that  "  the  omission 
to  enumerate  any  Congressional  powers  would 
become  an  argument  against  their  existence, 
and  it  will  be  early  enough  to  insist  upon 
them  when  they  shall  be  exercised  and  dis- 
puted." So  early  did  questions  of  constitu- 
tional construction  arise ;  and  so  promptly 
was  the  necessity  for  "  supplemental  articles  ** 
made  apparent.  They  proposed  seven  distinct 
.recommendations  for  increasing  the  powers  of 
Congress.  All  this  was  made  known  to  the 
States,  but  apparently  without  producing  a 
movement  for  their  adoption. 

Such  incomplete  measures  encountered  a 
double  opposition.  The  States  were  in  large 
part  unwilling  to  have  any  force  applied  to 
their  delinquency,  and  equally  unwilling  to 
diminish  their  reserved  powers.  The  friends 
and  advocates  of  a  strong  national  govern- 
ment, on  the  other  hand,  were  indifferent  to 
these  half-measures,  knowing  how  far  they 
failed  of  affording  relief  to  the  country.  Of 
the  latter  class  Hamilton  expressed  the  sen- 
timents when  he  published  these  words: 
"There  is  hardly  a  man  who  will  not  ac- 
knowledge the  Confederation  unequal  to  a 
vigorous  prosecution  of  the  war,  or  to  the 
preservation   of    the    Union   in    peace.    The 


PRELIMINARIES   OF   THE   CONVENTION     29 

Federal  government,  too  weak  at  first,  will 
continually  grow  weaker.  .  .  .  We  ought  with- 
out delay  to  enlarge  the  powers  of  Congress. 
Every  plan  of  which  this  is  not  the  foundation 
will  be  illusory." 

During  the  years  1781-82  the  condition  of 
the  finances  was  constantly  growing  worse, 
paper  money  had  become  almost  worthless,  i^ 
the  army  wanted  pay,  requisitions  were  dis- 
obeyed, and  anxiety  and  distress  were  general. 
Congress  organized  with  more  or  less  success 
some  departments  of  administration;  but  these . 
found  themselves  seriously  ineffective  for  want 
of  powers  and  lack  of  revenue.  France  agreed 
to  make  another  small  loan,  with  assurance 
that  nothing  more  must  be  expected  from  her, 
and  accompanied  by  reproaches  upon  the  un- 
willingness of  the  States  to  exert  themselves. 

At  this  time  of  general  conflict  of  material 
interests,  of  social  elements,  of  political  aims, 
and  of  personal  ambitions,  Schuyler  and  Ham- 
ilton urged,  and  both  branches  of  the  legisla- 
ture of  New  York  adopted,  resolutions  (July, 
1782)  unanimously  recommending  Congress 
to  propose  "  and  each  State  to  adopt  the 
measure  of  assembling  a  general  convention 
of  the  States,  specially  authorized  to  revise 
and  amend  the  Confederation,  reserving  a 
right  to  the  respective  legislatures  to  ratify 
their  determinations."  These  resolutions  were 


30        EVOLUTION   OF  THE   CONSTITUTION 

communicated  to  Congress,  and  to  the  state 
governments. 

Meantime,  the  proposition  to  so  enlarge  the 
powers  of  Congress  that  they  might  obtain  a 
revenue  from  duties  on  imports  had  been  rati- 
fied by  all  the  States  except  Rhode  Island. 
Congress  was  about  to  send  a  committee  to 
obtain  the  assent  of  that  State  when  the  Vir- 
ginia Legislature  (December,  1782),  on  the 
motion  of  Richard  Henry  Lee,  most  unex- 
pectedly retracted  its  previous  assent,  on  the 
ground  that  it  involved  a  surrender  of  the 
state  sovereignty. 

This  refusal  on  the  part  of  so  important  a 
Confederate  member  as  Virginia  gave  a  shock 
to  the  Confederacy  itself.  It  seemed  not  only 
a  refusal  of  this  particular  measure  for  the 
support  of  the  Union,  but  its  principle  tended 
against  all  powers  in  Congress  which  should 
operate  in  any  way  directly  upon  the  citizens 
of  a  State.  Yet  it  proved  a  step  in  the  march 
to  a  more  perfect  union.  Parties  in  that  State 
divided,  one  led  by  the  mover  of  that  resolu- 
tion, and  supported  by  Arthur  Lee,  Mercer, 
and  Bland;  the  other,  by  Madison,  with  the 
positive  support  of  Washington.  Meanwhile, 
its  immediate  effect  operated  to  the  serious 
disadvantage  of  the  country.  Hostilities  had 
practically  terminated.  Adjustment  of  new 
commercial   relations  with  Great    Britain  re- 


PRELIMINARIES   OF  THE  CaNVENTION     31 


mained  to  be  effected.  Congress  had  no  power 
to  regulate  commerce  or  pass  a  navigation  act. 
After  the  peace,  the  question  whether  Ameri- 
can vessels  were  national  or  state  was  raised 
in  Parliament  (May,  1 783).  Lord  Thurlow  said : 
"  I  have  read  an  account  which  stated  the 
government  in  America  to  be  totally  unsettled, 
and  that  each  province  seemed  intent  on  es- 
tablishing a  distinct,  independent,  sovereign 
State."  And  Parliament  decided  to  commit  all 
American  commercial  rights  to  the  arbitrary 
will  of  the  King  in  council.  Jay  wrote  that  no 
time  should  be  lost  in  raising  and  maintaining 
a  national  spirit  in  America.  Gouverneur 
Morris  replied  that  the  British  restrictions 
would  do  us  "  more  political  good  than  com- 
mercial mischief ;  '*  true  energy  in  our  general 
government  would  yet  be  supplied.  Lord  North 
discussed  our  situation,  and  predicted  utter 
powerlessness  in  our  Confederacy,  each  State 
having  reserved  to  itself  every  power  relative 
to  imports,  exports,  prohibitions,  and  duties, 
and  recommended  that  the  States  be  sepa- 
rately dealt  with.  They  did  not  fail  to  dis- 
cover in  this  the  means  of  further  weakening 
a  power  which  with  perfect  union  might  be- 
come formidable.  Slowly  these  English  views 
reached  and  affected  American  opinion.  La- 
fayette also  by  correspondence  urged  the  con- 
solidation of  the  Union. 


u 


32        EVOLUTION   OF  THE  CONSTITUTION 

Additional  pressure  was  brought  to  bear 
upon  public  opinion  by  the  discontent  and 
urgent  demands  of  the  army  for  their  pay, 
long  time  in  arrears.  Their  violent  and  indig- 
nant spirit  was  subdued  only  by  the  discreet 
action,  patriotic  words,  and  personal  interven- 
tion of  Washington,  who  besought  them  not 
to  sully  their  reputation  by  a  mutinous  act  at 
the  close  of  a  glorious  career.  Upon  their  dis- 
bandment,  a  few  months  later,  they  organized 
the  Society  of  Cincinnati,  with  the  emphatic 
pledge  of  an  "unalterable  determination  to 
promote  and  cherish  union  between  the  States," 
and  separated  without  a  penny  of  pay.  The 
influence  of  the  army  was  reinforced  by  that 
of  the  public  creditors,  who  were  wholly  un- 
provided for ;  not  only  the  creditors  at  home, 
but  also  in  France  and  Holland,  all  of  whom 
became  clamorous  for  some  action  looking  to 
the  payment  of  their  obligations.  Hamilton  ex- 
pressed utter  want  of  confidence  in  temporary 
revenue  measures  which  depended  on  state 
action. 

In  April,  1 783,  and  after  the  announcement 
of  peace.  Congress  took  up  the  New  York 
resolutions  for  a  general  constitutional  con- 
vention, and  referred  them  to  a  committee  of 
nine.  Washington's  earnestness  for  a  more 
complete  union  was  manifested  with  the  pro- 
found sincerity  and  warmth  of  an  apostle  of 


PRELIMINARIES   OF  THE   CONVENTION     33 

religion.  He  addressed  communications  of 
great  force,  both  to  Congress  and  to  all  the 
governors  of  States,  urging  the  imperative 
necessity  of  prompt  and  united  action  to  res- 
cue the  country  from  bankruptcy  and  disorder, 
and  to  preserve  by  their  union  the  inestimable 
rights  secured  through  the  long  struggles  of 
the  Revolutionary  war.  "  The  honor,  power, 
and  true  interest  of  this  country  must  be 
measured  by  a  continental  scale.  To  form  a 
new  constitution  that  will  give  consistency, 
stability,  and  dignity  to  the  Union,  and  suffi- 
cient powers  to  the  great  council  of  the  nation 
for  general  purposes,  is  a  duty  incumbent  on 
every  man  who  wishes  well  to  his  country.  .  .  . 
If  a  spirit  of  discussion  or  obstinacy  and  per- 
verseness  should  in  any  of  the  States  attempt 
to  frustrate  all  the  happy  effects  that  might  be 
expected  to  flow  from  the  Union,  that  State 
which  puts  itself  in  opposition  to  the  aggre- 
gate wisdom  of  the  continent  will  alone  be  re- 
sponsible for  the  consequences.  .  .  .  Happiness 
is  ours,  if  we  seize  the  occasion  and  make  it 
our  own.  .  .  .  Whatever  measures  have  a  ten- 
dency to  dissolve  the  Union,  or  to  violate  or 
to  lessen  the  sovereign  authority,  ought  to  be 
considered  as  hostile  to  the  liberty  and  inde- 
pendence of  America."  These  sentiments  were 
supported  by  an  irresistible  argument,  based 
on  the  then  existing  condition  of  affairs,  and 


34        EVOLUTION   OF  THE   CONSTITUTION 

were  communicated  by  the  governors  to  their 
legislatures  in  every  State.  He  formulated  no 
plan,  but  avowed  his  desire  "to  see  energy 
given  to  the  Federal  Constitution  by  a  con- 
vention of  the  people." 

The  first  effect  of  this  circular  letter  to  the 
States  was  that  of  inducing  some  of  them  to 
reverse  their  earlier  action  against  the  power  of 
Congress  to  levy  the  import  duties  within  the 
States,  which  had  been  proposed  as  the  first 
measure  for  the  restoration  of  public  credit. 
Virginia,  also,  after  a  bitter  struggle,  passed 
over  to  the  side  of  Washington.  Its  second 
effect  was  to  check  the  tide  of  what  Hamilton 
styled  "  the  epidemic  phrenzy  "  of  absolute,  sep- 
arate sovereignty  of  each  individual  State.  But 
Congress  continued  irresponsive  to  the  efforts 
of  its  ablest  men  in  favor  of  a  better  union ;  and 
in  September  its  committee  recommended  a 
postponement  of  action  on  the  New  York  reso- 
lutions. 

The  British  order  prohibiting  American 
ships  from  carrying  produce  to  British  colo- 
nies did  more  than  all  previous  arguments  to 
arouse  the  States  to  the  necessity  of  enlarging 
Congressional  power,  in  order  by  general  legis- 
lation to  resent  and  resist  such  foreign  assaults 
on  American  interests.  In  April,  1 784,  the  new 
Congress  agreed  to  a  proposition  that  this  body 
should  be  empowered,  with  the  assent  of  nine 


PRELIMINARIES   OF  THE   CONVENTION     35 

States,  and  for  the  term  of  fifteen  years,  to 
exercise  prohibitory  powers  over  foreign  com- 
merce. Jefferson,  knowing  how  much  hostile 
foreign  powers  depended  on  the  fact  that  each 
State  was  always  protesting  for  its  separate 
sovereignty  and  independence  of  central  con- 
trol, in  his  draft  of  instructions  for  our  diplo- 
matic agents  abroad,  spoke  of  "  the  United 
States  as  one  nation  upon  the  principles  of  the 
Federal  Constitution."  Rhode  Island,  which 
had  before  objected  to  the  use  even  of  the 
-words  "  Federal  government,"  alleging  there 
was  no  such  "  government,"  but  only  a  union, 
again  interposed  her  voice  now.  At  the  vote 
taken  upon  this  phrase  of  Jefferson,  he  was 
sustained  by  eight  States  against  two.  The  fact 
is  worthy  of  note  as  one  of  the  signs  of  an  ad- 
vance in  the  conception  of  a  national  govern- 
ment for  the  future.  Washington  had  often 
before,  as  after  this  time,  made  free  use  of  the 
word  "  nation,"  as  applied  to  the  United  States. 
Early  in  1 784,  though  now  a  private  citizen, 
Washington  addressed  to  the  governor  of  Vir- 
ginia an  earnest  appeal  for  a  stronger  bond  of 
union.  The  clearness  of  his  views  appears  from 
the  following  extract :  "  An  extension  of  Fed- 
eral powers  would  make  us  one  of  the  most 
wealthy,  happy,  respectable,  and  powerful  na- 
tions that  ever  inhabited  the  terrestrial  globe. 
Without  these,  we  shall  soon  be  everything 


36        EVOLUTION   OF  THE   CONSTITUTION 

which  is  directly  the  reverse.  I  predict  the 
worst  consequences  from  a  half-starved,  limp- 
ing government,  always  moving  upon  crutches 
and  tottering  at  every  step."  The  new  Le- 
gislature of  Virginia  was  better  disposed  to 
strengthen  the  Union.  Even  Patrick  Henry 
showed  a  yielding  spirit,  and  Jefferson's  fa- 
vorable influence  was  pronounced. 

In  the  Congressional  session  of  this  year  four 
States  were  absent,  three,  becoming  dissatis- 
fied, withdrew,  and  the  powerless  remainder 
finding  themselves  deserted  went  home  in  utter 
feebleness.  The  next  (Fifth)  Congress,  which 
should  have  assembled  in  November,  was  long 
without  a  quorum.  The  French  charge  d'af- 
faires reported  to  his  government  that  in 
America  there  was  "  no  general  government, 
neither  Congress  nor  President,  nor  head  of 
any  one  administrative  department."  It  seemed 
a  near  approximation  to  anarchy  in  Federal 
affairs. 

In  the  following  winter  Noah  Webster  pub- 
lished a  proposed  "  new  system  of  government 
which  should  act,  not  on  the  States,  but  di- 
rectly on  individuals,  and  vest  in  Congress 
full  power  to  carry  its  laws  into  effect." 

The  year  1785  brought  to  view  two  influ- 
ences bearing  upon  the  constitutional  union, 
and  moving  in  opposite  directions.  The  Con- 
gress had  chosen  for  its  President  this  year 


PRELIMINARIES   OF   THE   CONVENTION     37 

Richard  Henry  Lee,  a  bitter  opponent  of 
inherent  Congressional  powers ;  and  the  New 
York  Legislature  appointed  its  delegates  so 
that  a  majority  of  them  joined  Lee  in  his 
opposition,  thus  changing  the  position  of  that 
influential  State.  On  the  other  hand,  the 
excessive  flooding  of  American  markets  with 
English  goods,  the  British  obstructions  to  the 
shipbuilding  and  the  carrying  trades,  and 
restrictions  upon  their  home  markets  against 
the  products  of  American  fishery,  had  com- 
bined to  produce  ruin  to  our  manufactures, 
disaster  to  producing  interests,  and  the  ex- 
haustion of  the  metallic  currency  of  the  coun- 
try. The  industrial  Americans  were  in  a  state 
bordering  on  despair,  and  found  it  vain  to 
look  for  relief  to  a  Congress  without  power 
to  provide  a  remedy.  When  single  States 
sought  relief  by  protective  duties,  this  only 
served  as  a  premium  to  another  State  to  con- 
centrate in  its  own  ports  a  free  foreign  trade, 
thus  made  yet  more  valuable  to  itself.  Duties 
against  imports  from  other  States  necessarily 
followed.  At  this  juncture  Congress  trans- 
ferred its  seat  to  New  York. 

Its  assemblage  there  was  welcomed  by  the 
industrial  interests  of  that  city  with  an  address, 
in  which  they  showed  their  disagreement  with 
the  recent  choice  of  delegates  by  their  Legis- 
lature ;  saying,  "  We  hope  our  representatives 


38        EVOLUTION  OF  THE   CONSTITUTION 

will  coincide  with  the  other  States  in  aug- 
menting your  power  to  every  exigency  of  the 
Union."  The  Chamber  of  Commerce  also 
begged  them  to  counteract  the  injurious  re- 
strictions of  foreign  nations.  Popular  move- 
ments in  the  same  direction  appeared  in 
Philadelphia  and  Boston.  Pennsylvania  and 
New  York  both  increased  their  duties,  in 
unequal  degree,  the  one  on  numerous  foreign 
goods,  the  other  on  such  goods  as  were  im- 
ported in  British  bottoms.  The  Legislature  of 
Massachusetts  pledged  itself  to  use  its  most 
earnest  endeavor  to  put  the  Federal  govern- 
ment "  on  a  firm  basis,  and  to  perfect  the 
Union  ;  "  and  formally  admitted  that  the  Arti- 
cles of  Confederation  were  inadequate  to  the 
purposes  to  be. effected.  They  ordered  their 
resolutions  to  be  communicated  to  Congress, 
and  to  the  executive  of  each  State.  They  also, 
as  well  as  New  Hampshire  and  Rhode  Island, 
passed  retaliatory  acts  against  Great  Britain, 
to  continue  "until  a  well-guarded  power  to 
regulate  trade  shall  be  intrusted  to  Congress." 
Like  Pennsylvania,  Massachusetts  established 
highly  protective  duties. 

In  addition  to  the  embarrassments  of  com- 
merce resulting  from  this  discordant  action  of 
the  States  in  respect  to  duties  on  imports,  and 
from  the  absence  of  a  central  power  to  combat 
the  injuries  to  trade  flowing  from  the  action 


PRELIMINARIES   OF  THE   CONVENTION     39 

of  foreign  governments,  great  confusion  was 
created  by  the  numerous  and  variable  stand- 
ards of  value  and  the  unsteady  financial  laws 
of  the  several  States.  In  some  the  creditors 
were  obliged  to  accept  real  and  personal  estate 
at  an  appraised  value  in  satisfaction  of  their 
judgments.  In  others  depreciated  paper  was 
legal  tender  in  payment  for  purchases,  on  a 
fixed  scale  of  depreciation.  In  others  it  must 
be  received  at  its  par  value.  Numerous  stay- 
laws  were  enacted.  Even  in  Massachusetts 
the  courts  were  interrupted  by  riotous  force. 
Legislation  on  the  relation  between  debtor 
and  creditor  was  constantly  changing.  There 
was  no  security  for  one  side  or  the  other.  The 
rate  of  exchange  in  interstate  transactions  was 
alarmingly  variable.  One  of  the  States  author- 
ized the  court  and  jury  to  decide  questions  of 
debt  to  the  best  of  their  knowledge,  agreeably 
to  equity  and  good  conscience.  In  the  pres- 
sure of  the  times  some  States  appeared  to 
abandon  hope  of  a  metallic  currency,  and  took 
refuge  in  new  emissions  of  paper  money.  A 
British  agent  writes  to  his  government :  "  It 
is  with  pleasure  that  I  can  inform  your  lord- 
ship what  silver  and  gold  is  to  be  had  in  this 
country  goes  in  his  Majesty's  packet-boats  to 
England."  Georgia  redeemed  its  paper  with 
specie  certificates  at  the  rate  of  one  thousand 
for  one,  while  Delaware  adopted  the  rate  of 


40        EVOLUTION   OF  THE   CONSTITUTION 

one  to  seventy-five.  Virginia,  overwhelmed 
with  depreciated  paper,  stopped  its  issue  after 
1 78 1,  and  undertook  to  redeem  it  in  loan  cer- 
tificates at  the  rate  of  one  thousand  for  one. 
Judgments  could  be  satisfied  by  the  tender 
of  hemp,  tobacco,  flour,  at  a  rate  fixed  by  the 
county  courts,  and  even  taxes  were  paid  in 
tobacco. 

Under  these  conditions  contracts  wholly  lost 
the  protection  of  the  laws  under  which  they 
were  made.  The  debtors  were  far  more  numer- 
ous than  creditors,  and  practically  controlled 
legislation  by  demands  which  rested  on  the 
emergency  alone,  ungoverned  by  principle. 
Good  men  everywhere  were  struggling  against 
the  general  demoralization,  and  openly  protest- 
ing against  it.  It  led  them  strongly  towards  the 
plan  of  a  new  constitution  for  the  Confederacy, 
which  should  destroy  this  power  in  the  States 
by  conferring  on  Congress  exclusive  authority 
to  regulate  the  legal-tender  money  of  the  coun- 
try, and  to  prohibit  the  States  from  impairing 
the  obligation  of  contracts. 

During  this  year (i  785)  the  common  efforts  of 
Maryland  and  Virginia  to  unite  the  waters  of 
the  Potomac  and  Ohio  for  the  improvement 
of  commerce,  and  the  especial  desire  of  Mary- 
land for  a  canal  connecting  the  Delaware  and 
Chesapeake  Bays,  for  which  the  cooperation 
of  Pennsylvania  and   Delaware  was  needful, 


PRELIMINARIES   OF  THE   CONVENTION     41 

induced  Maryland  to  make  a  further  proposi- 
tion. If  even  these  two  limited  lines  of  internal 
communication  could  not  proceed  without  a 
common  understanding  of  several  States,  how 
could  all  the  commercial  relations  of  the  future 
go  on  if  liable  to  the  conflicting  legislation  of 
independent  States  ?  The  Legislature  of  Mary- 
land in  this  connection  addressed  a  commu- 
nication to  that  of  Virginia,  proposing  that 
commissioners  from  all  the  States  should  be 
invited  to  meet  and  regulate  the  restrictions  on 
commerce  for  the  whole.  Madison  quickly  saw 
the  opportunity  to  inaugurate  the  long-desired 
movement  for  a  more  perfect  Union,  and,  hold- 
ing himself  in  the  background,  persuaded  a 
state  sovereignty  member  to  offer  the  resolu- 
tion which  he  prepared,  for  the  appointment 
of  commissioners  by  Virginia,  to  meet  commis- 
sioners from  all  the  States,  to  examine  and  re- 
port on  the  requisite  increase  of  the  powers  of 
Congress  over  trade,  their  action  being  subject 
to  the  ratification  of  every  State.  It  was  quietly 
called  up  at  a  later  period,  and  passed  (January, 
1 786) ;  and  Madison  was  placed  at  the  head  of 
the  commission.  Annapolis  was  proposed  as 
the  place,  and  September  as  the  time,  for  the 
assembling  of  the  commissioners.  No  New 
England  State  appeared,  and  no  Southern  State 
south  of  Virginia,  while  even  Maryland  was 
absent  from  her  own  capital.   The  five  States 


42        EVOLUTION   OF  THE   CONSTITUTION 

present  were  represented  by  men  from  New 
York,  New  Jersey,  Pennsylvania,  Delaware, 
and  Virginia,  who  believed  in  more  far-reach- 
ing provisions  than  those  suggested  by  the 
original  resolution.  Their  sessions  were  soon 
closed,  with  a  recommendation  to  their  States 
to  obtain  a  meeting  of  all  the  States  at  Phila- 
delphia in  the  following  May,  to  consider  the 
situation  of  the  country,  and  to  devise  the 
measures  necessary  to  make  the  Constitution 
adequate  to  the  exigencies  of  the  Union. 

Before  the  meeting  at  Annapolis,  new  efforts 
were  made  in  Congress  to  enlarge  its  powers. 
Charles  Pinckney  reported  from  a  committee 
seven  amendments  to  the  Articles  of  Confed- 
eration, giving  Congress  power  to  regulate 
foreign  and  domestic  trade,  and  to  collect 
duties,  which,  however,  must  be  paid  over  to 
the  State  in  which  collected;  to  punish  treason 
and  crimes  committed  on  the  high  seas;  to 
establish  an  appellate  court  of  seven  judges 
with  jurisdiction  of  certain  Federal  questions ; 
to  establish  a  new  system  of  revenue,  eleven 
States  consenting ;  and  regulating  the  payment 
of  quotas  by  States.  After  long  and  some- 
times violent  discussion,  these  propositions 
were  abandoned  to  that  great  file  of  ever-accu- 
mulating unfinished  business.  The  country 
ceased  to  expect  relief  from  its  Congress.  New 
Jersey  was  gained  to  the  plan  of  a  convention 


PRELIMINARIES   OF  THE   CONVENTION    43 

for  enlarging  the  powers  of  the  general  gov- 
ernment. The  taxation  on  her  imported  goods, 
introduced  through  the  port  of  New  York, 
and  the  practical  assessment  of  her  own  citi- 
zens for  the  sole  benefit  of  the  New  York 
State  Treasury,  opened  her  eyes  to  the  neces- 
sity of  a  reform  in  the  Union. 

The  general  situation  of  the  country  in  the 
summer  of  1 786  was  deplorable.  From  a  care- 
ful official  report  made  to  the  Count  de  Ver- 
gennes  in  September  of  that  year,  it  appears 
that  the  condition  especially  of  New  England 
was  sufiicient  to  impart  a  sentiment  of  despair. 
The  common  masses  of  the  people,  driven  by 
distress,  demanded  the  emission  of  paper 
money  for  their  relief.  Massachusetts  had  seen 
its  prodigious  evils  in  other  States  and  refused 
it.  These  people  then  took  arms  and  dispersed 
the  courts,  demanded  their  abolition,  and  that 
of  the  State  Senate,  and  cried  out  for  a  new 
emission  of  paper,  and  other  wild  objects  from 
which  they  imagined  relief  would  come.  Pn 
New  Hampshire  three  hundred  mutineers 
assembled  to  break  up  a  court  of  justice,  and 
intimidated  their  legislature.  Many  of  the 
people  of  Connecticut  made  efforts  for  the 
abolishment  of  debts  and  the  dissolution  of 
the  courts.  Hundreds  of  farms  were  there 
offered  for  sale  for  the  payment  of  taxes ;  and 
specie  was  so  scarce  that  they  hardly  brought 


44        EVOLUTION   OF  THE   CONSTITUTION 

one  tenth  of  their  value.  A  British  agent, 
reported  upon  the  like  facts,  and  added :  "  In- 
deed, dissatisfaction  and  uneasiness  prevail 
more  or  less  throughout  this  country;  the 
greater  part  of  the  people  poor,  and  many  in 
desperate  circumstances,  do  not,  it  seems, 
want  any  government  at  all,  but  had  rather 
have  all  power  and  property  reduced  to  a 
level."  The  five  state  delegations  at  Annapo- 
lis, aware  of  this  public  condition,  and  know- 
ing that  additional  commercial  authority  in 
Congress  was  totally  inadequate  as  a  rem- 
edy, wisely  resolved  to  rely  only  on  a  conven- 
tion with  general  powers  to  revise  the  entire 
Constitution  of  the  Union.  Guarded  as  was 
their  language,  it  revealed  to  the  intelligence 
of  the  country  the  imperative  nature  of  radical 
relief.  A  Virginia  member  of  Congress  wrote 
from  New  York  in  October  to  Washington: 
"  We  are  all  in  dire  apprehension  that  a  begin- 
ning of  anarchy  with  all  its  calamities  has 
approached,  and  have  no  means  to  stop  the 
dreadful  work."  He  added  the  suggestion  that 
Washington's  unbounded  influence,  if  brought 
to  bear,  might  quell  the  seditious  spirit.  Wash- 
ington in  his  reply  used  the  words,  "  Influence 
is  no  government." 

Moved  by  the  steady  force  of  her  great 
unionists,  and  by  the  increasing  disorders  of 
the  several  States,  Virginia  took   at  last,  in 


PRELIMINARIES   OF   THE   CONVENTION     45 

December,  1786,  a  firm  and  loyal  decision. 
Her  Assembly,  with  unexpected  unanimity, 
adopted  the  recommendation  of  the  Annapolis 
Convention,  and  appointed  the  great  names  of 
Washington,  Madison,  Mason,  and  Randolph 
to  represent  her  views  in  the  Philadelphia 
Convention.  Wisely  remembering  that  state 
legislatures  had  exercised  the  right  of  agree- 
ing to  national  measures  and  then  revoking 
that  agreement  at  will,  that  part  of  the  Annapo- 
lis report  which  suggested  that  the  act  of  the 
coming  convention  should  be  effective  w^hen 
"  confirmed  by  the  legislatures  of  every  State  " 
was  modified  in  the  Virginia  resolution  by 
requiring  confirmation  by  the  States.  By  this 
method  timid  legislatures  could  transfer  the 
decision  to  the  people  in  special  convention, 
as  in  fact  the  unionists  desired.  This  act  of 
Virginia  was  transmitted  by  Governor  Ran- 
dolph to  Congress  and  to  the  governors  of  all 
the  States.  New  Jersey  was  the  first  of  the 
States  to  accept  the  proposition.  Pennsyl- 
vania, most  constantly  loyal  to  the  Union, 
quickly  adopted  it,  followed  by  North  Carolina 
and  Delaware.  Rufus  King,  who  had  long 
used  his  great  influence  in  Massachusetts 
against  the  increase  of  central  power,  wrote 
Governor  Gerry  that  he  was  inclined  favorably 
to  this  project,  though  he  thought  it  illegal  in 
form  of  inception.   "  Events  are  hurrying  us  to 


46       EVOLUTION   OF  THE  CONSTITUTION     • 

a  crisis,"  he  said.  "  Prudent  and  sagacious 
men  should  be  ready  to  seize  the  most  favor- 
able circumstances  to  establish  a  more  perfect 
and  vigorous  government."  New  York,  still 
obstinate  under  Governor  Clinton,  ignored  the 
Annapolis  invitation,  and  desired  Congress  to 
call  a  general  convention.  When  the  New 
York  delegates  moved  it  under  their  instruc- 
tions, without  mentioning  time  or  place,  it  met 
with  entire  failure.  King,  of  Massachusetts, 
then  saw  his  opportunity  to  reconcile  his  past 
with  his  present  views,  and  perhaps  to  bring 
New  York  into  the  movement.  He  accord- 
ingly offered  (February,  1787)  a  plain  resolu- 
tion, by  which  Congress  advised  a  convention 
to  be  held  at  the  time  and  place  which  the 
action  of  Virginia  had  already  fixed,  but  with- 
out naming  the  act  of  that  State.  It  was  at 
once  accepted  by  Congress,  and  satisfied  the 
theorists  of  that  school  with  the  method  of 
initiating  the  convention.  States  could  now 
appoint  members  either  to  the  convention 
called  at  the  suggestion  of  the  Annapolis 
meeting  and  upon  the  invitation  of  Virginia, 
or  pursuant  to  the  recommendation  of  Con- 
gress; and  in  either  case  they  would  find 
themselves  in  one  common  convention.  It 
was  doubtless  a  wise  and  useful  measure,  in 
view  of  the  rivalries  of  men  and  of  the  jeal- 
ousies of  state  precedence. 


PRELIMINARIES   OF  THE   CONVENTION     47 

Massachusetts,  troubled  with  a  recent  insur- 
rection, accepted  in  February.  New  York  a 
few  days  later  concurred,  and  appointed  Yates 
and  Lansing,  who  represented  more  especially 
the  ideas  of  state  sovereignty,  and  Hamilton, 
who  was  a  strong  unionist,  to  be  her  delegates 
to  the  convention.  South  Carolina  and  Georgia 
appointed  their  delegates  in  April.  Connect- 
icut sent  a  strong  delegation  in  May,  and 
Maryland  soon  followed.  New  Hampshire  de- 
layed till  June.  Rhode  Island  alone  main- 
tained her  isolation  to  the  end  as  a  non-union 
State,  by  a  legislative  majority  of  twenty- two 
votes  against  the  convention. 

Pending  these  proceedings  for  a  convention, 
and  late  in  February,  Madison  wrote  to  Gov- 
ernor Randolph:  "Our  situation  is  becoming 
every  day  more  and  more  critical.  No  money 
comes  into  the  Federal  treasury ;  no  respect  is 
paid  to  the  Federal  authority;  and  people  of 
reflection  unanimously  agree  that  the  exist- 
ing Confederacy  is  tottering  to  its  foundation." 
He  added  that  men  in  the  East  were  suspected 
of  leaning  towards  monarchy;  others  were 
predicting  the  partition  of  the  States  into  two 
or  more  confederacies.  He  believed  that  unless 
a  radical  amendment  of  the  present  system  was 
effected  the  partition  would  take  place.  In 
April  he  again  wrote  that  "  unless  the  Union 
was  efficiently  organized  on  republican  princi- 


48       ^VOLUTION   OF  THE   CONSTITUTION 

pies  the  partition  of  the  empire  into  rival  and 
hostile  confederacies  will  ensue." 

By  the  foregoing  tedious  and  often  unavail- 
ing steps  did  the  people  of  the  United  States 
advance  towards  a  more  perfect  government. 
The  causes  of  this  slow  approximation  to  a 
result  so  necessary  to  their  security  from  for- 
eign foes,  and  so  indispensable  to  the  establish- 
ment of  equal  and  common  privileges  among 
the  citizens  of  different  States,  are  not  obscure. 
The  vast  extent  of  their  territory,  the  com- 
munication limited  by  sail  on  the  water  lines, 
and  by  poor  wagon-roads  and  bridle-paths  on 
land,  were  great  hindrances  to  a  friendly  and 
intimate  knowledge  of  their  mutual  interests. 
The  different  controlling  industries  in  various 
States  created  apprehensions  of  adverse  legis- 
lation by  a  body  in  which  these  various  interests 
should  be  unequally  represented.  Some  States 
were  more  deeply  in  debt  than  others,  and  in 
deeper  poverty.  These  feared  the  power  and 
influence  of  the  more  wealthy  and  prosperous 
States.  In  some  of  them  the  spirit  of  repudia- 
tion was  rife  and  bold ;  and  these  desired  to 
retain  the  position  of  aliens  towards  any  power 
which  might  be  animated  by  a  strong  sense  of 
justice.  Their  ideas  of  a  home  government 
could  not  be  expanded  to  embrace  a  continent, 
or  even  its  Atlantic  region.  Slavery,  increased 
by  annual   importations  of   human  beings  as 


PRELIMINARIES   OF   THE   CONVENTION     49 

property,  had  obtained  a  solid  territorial  domi- 
nation in  one  section,  and  but  a  small  and  un- 
steady foothold  in  another.  There  was  as  yet 
no  brotherhood  among  the  States,  except  in 
small  groups.  The  limited  number  of  delegates 
to  Congress,  many  of  them  frequent  absentees, 
and  who  represented  the  legislatures,  not  the 
people,  were  insuflScient  instruments  for  propa- 
gating ideas  of  union  among  a  widely  scattered 
popular  constituency.  There  were  fewer  num- 
bers in  the  Congress  than  in  most  of  the  state 
legislatures.  The  latter  were  lords,  the  former 
servants.  Congressional  opinion  was  in  per- 
petual chains,  and  had  the  timidity  which  at- 
taches to  subserviency.  Too  much  courage  of 
conscience  involved  the  sacrifice  of  position. 
Constant  rotation  in  office  diminished  or  de- 
stroyed the  growth  and  usefulness  of  experience. 
The  enlarged  views  acquired  from  the  height 
of  central  government  were  ever  nullified  by 
the  narrower  aspirations  of  local  sovereignty. 
Authority,  whether  executive,  legislative,  or 
judicial,  if  intrusted  to  persons  not  appointed 
by  the  state  legislature  itself,  and  irresponsible 
to  the  State,  seemed  to  the  people  an  abandon- 
ment of  personal  rights,  and  a  return  to  foreign 
jurisdiction.  All  citizens  of  the  United  States 
were  animated  by  the  identical  love  of  personal 
liberty  and  of  free  institutions  which  character- 
ized each  ;  yet  each  remained  blind  to  the  truth 


so       EVOLUTION   OF   THE   CONSTITUTION 

that  there  was  greater  security  in  the  combined 
force  of  all  than  could  be  found  in  single  inde- 
pendence and  sovereignty.  For  war  they  ad- 
mitted the  need  of  union.  In  peace  only  the 
stress  of  commercial  conflict  between  the  States 
and  with  foreign  countries  could  induce  them 
to  strengthen  the  bonds  of  a  general  govern- 
ment. 

While  these  were  the  prevailing  sentiments, 
among  leaders  there  was  abundant  diversity  in 
theories  of  government  for  the  Union.  Systems, 
plans,  projects,  had  been  discussed  for  many 
years,  and  so  often  defeated  or  ignored  that  it 
hardly  seemed  within  human  power  to  revive 
an  old  or  propose  a  new  one  with  any  reason- 
able probability  of  its  general  adoption.  The 
predisposition  of  each  State  was  to  reject  the 
plan  of  every  other  State.  The  rivalries  of  per- 
sons and  of  communities  reinforced  this  pre- 
judice, and  covered  any  new  scheme  with  clouds 
of  doubt.  It  was  not,  therefore,  to  be  regretted 
that  some  men  of  strong  intellect  who  might 
have  been  delegates  to  this  convention,  but  who 
were  enemies  to  a  consolidation  of  the  Union, 
preferred  to  remain  at  home,  and  permitted 
their  places  to  be  filled  by  friends  of  the  na- 
tional movement.  It  was  of  supreme  impor- 
tance that  the  scheme  of  reform  to  be  devised 
should  have  the  general  sanction  of  the  initia- 
tory body  before  demanding  that  of  the  States. 


PRELIMINARIES   OF  THE   CONVENTION     51 

This  could  better  be  accomplished  by  union- 
ists of  different  shades  of  opinion  than  by  the 
doubtful  cooperation  of  persistent  separatists. 
It  would  hardly  be  possible  to  find  a  more 
melancholy  picture  for  the  contemplation  of 
patriots  than  that  presented  by  the  States  of 
the  Union  at  the  time  of  their  appointment 
of  delegates  to  Philadelphia.  The  public  debt 
was  in  no  part  paid,  and  no  provision  whatever 
was  made  for  its  payment.  The  Confederacy 
was  without  revenue  of  its  own,  and  without 
resources.  Whatever  gold  or  silver  existed  in 
the  country  was  sent  beyond  seas  to  pay  for 
imported  goods.  None  of  the  States  fully  re- 
sponded to  Confederate  requisitions;  some 
partially  complied,  and  New  Jersey  expressly 
refused  to  comply.  The  navigation  laws  of  New 
York,  Pennsylvania,  New  Jersey,  and  Maryland 
treated  the  other  States  as  ahens,  as  if  they 
were  European  countries.  South  Carolina, 
Virginia,  Pennsylvania,  and  New  York  were 
taxing  the  trade  of  other  States  passing  through 
their  ports,  and  developed  angry  sentiments  in 
their  nearest  neighbors.  Connecticut  taxed  im- 
ports even  from  Massachusetts.  The  treaties 
made  by  the  Confederation  were  violated  in  the 
States  with  impunity.  Compacts  were  made 
between  States  in  violation  of  the  articles  of 
the  Confederacy,  even  by  such  States  as  New 
Jersey  and  Pennsylvania,  Virginia  and  Mary- 


52        EVOLUTION   OF  THE   CONSTITUTION 

land.  The  demoralization  had  gone  so  far  that 
Virginia  not  only  refused  to  apply  for  the  sanc- 
tion of  its  compact  with  Maryland  by  Congress, 
but  even  voted  against  advising  Congress  of 
its  existence.  The  legislatures  and  the  people 
showed  equal  disregard  of  public  and  private 
obligations.  Respect  for  the  Confederacy  had 
ceased  at  home,  and  it  was  the  object  of  con- 
tempt abroad.  Thoughtful  men  doubted  of  the 
capacity  of  the  people  for  self-government,  and 
began  to  whisper  of  monarchy  as  a  cure  of 
public  disorders. 

Surrounded  by  doubts,  but  inspired  by  hope, 
and  powerfully  urged  by  the  dangers  and  dis- 
tresses of  the  country,  the  delegates  to  this 
Convention  made  their  journey  by  slow  stages 
from  their  respective  States  to  the  city  of 
Philadelphia,  now  to  become  once  more  the 
centre  of  a  nation's  hopes. 


THE  CONSTITUTIONAL  CONVENTION 

The  Convention  was  summoned  for  the  14th 
of  May,  1787.  The  necessary  quorum  of  seven 
States  did  not  appear  until  the  25th  of  May, 
when  the  majority  of  the  New  Jersey  delegates 
presented  their  credentials.  Three  days  later 
Massachusetts  and  Maryland  increased  the 
number  to  nine.  The  representation  of  Con- 
necticut and  Georgia  added  two  more  States 
on  the  30th  and  31st  of  May.  That  of  New 
Hampshire  did  not  arrive  until  the  23d  of  July, 
after  the  majority  of  the  New  York  delegates 
had  withdrawn ;  so  that  only  eleven  States 
were  voted  at  any  one  time,  out  of  the  twelve 
represented.  Rhode  Island  alone  refused  to 
be  represented,  having  rejected  the  proposition 
by  a  legislative  majority  of  twenty-two  votes. 
A  number  of  her  leading  citizens,  however, 
forwarded  a  letter  of  sympathy  to  the  Con- 
vention. 

Of  the  characters  composing  this  Conven- 
tion, the  French  minister  wrote  to  his  govern- 
ment: "If  all  the  delegates  chosen  to  this 
Convention  at  Philadelphia  are  present,  Europe 
will  never  have  seen  an  assembly  more  respect- 


54       EVOLUTION   OF   THE   CONSTITUTION 

able  for  talents,  for  knowledge,  for  the  disinter- 
estedness and  patriotism  of  those  who  compose 
it.  General  Washington,  Dr.  Franklin,  and  a 
great  number  of  other  distinguished  person- 
ages, though  less  known  in  Europe,  have  been 
called  thither." 

It  was  certainly  most  fortunate  for  the  coun- 
try, for  the  prestige  of  the  Convention,  and  for 
the  solidity  of  its  work,  that  Virginia  set  the 
example  of  intrusting  her  commission  to  her 
greatest  names.  Where  Washington  led  the 
way,  followed  by  Madison,  Governor  Randolph, 
George  Mason,  and  Chancellor  Wythe,  no 
other  State  would  be  willing  to  refuse  a  con- 
tribution of  its  most  reputable,  noblest  char- 
acters. Pennsylvania  responded  with  Franklin's 
vast  experience  and  wisdom  gathered  on  two 
continents,  with  Robert  Morris  and  Gouverneur 
Morris,  and  was  further  strengthened  by  the 
great  ability  of  Wilson.  South  Carolina  sent 
John  Rutledge,  with  the  two  Pinckneys.  New 
Jersey  offered  her  chancellor,  Livingston,  with 
Chief  Justice  Brearley,  William  Paterson,  and 
Dayton.  New  York  reluctantly  commissioned 
her  chief  unionist,  Alexander  Hamilton,  a  born 
statesman,  who  combined  indomitable  force  of 
character  with  a  genius  for  the  orgartization  of 
States.  Delaware  gave  her  patriotic  Read  and 
her  venerable  Dickinson  as  aids  in  the  great 
work.   Connecticut,  so  rich  in  contributions  of 


THE   CONSTITUTIONAL  CONVENTION        55 

soldiers  to  the  Revolutionary  struggle,  ranked 
herself  in  the  forefront  of  the  Convention  when 
Sherman  and  Ellsworth  and  Johnson  appeared 
there.  The  voice  of  Massachusetts  found  elo- 
quent expression  in  Rufus  King,  and  her 
opinions  gathered  strength  from  the  high  re- 
putation of  Governor  Gerry  and  the  wisdom  of 
Gorham.  If  ever  a  government  could  be  formed 
fresh  from  the  brain  of  man,  instinct  with  a 
vigorous  life,  and  admirable  in  form  as  that 
fabled  goddess  who  sprang  full-armed  from  the 
brow  of  Jove,  it  might  surely  be  expected  from 
the  midst  of  this  assembly  of  the  wisest  and 
purest  and  most  patriotic  characters  to  which 
the  old  European  or  the  young  American  con- 
tinent had  ever  given  birth.  If  the  effort 
should  fail  now  and  here,  the  boldest  of  our 
national  patriots  were  prepared  to  await  in 
silence  and  unhappy  resignation  the  alterna- 
tive fates  of  anarchy  or  despotism. 

The  completed  roll  of  delegates  who  were  ac- 
tually present  in  the  Convention  at  some  time 
during  its  deliberations  shows  the  following 
names :  — 

From  New  Hampshire  (2)  —  John  Langdon, 
Nicholas  Gilman. 

From  Massachusetts  (4)  —  Elbridge  Gerry, 
Nathaniel  Gorham,  Rufus  King,  Caleb  Strong. 

From      Connecticut    (3)  —  William    Sam- 


56       EVOLUTION   OF  THE   CONSTITUTION 

uel  Johnson,  Roger  Sherman,  Oliver  Ells- 
worth. 

From  New  York  (3)  —  Robert  Yates,  Alex- 
ander Hamilton,  John  Lansing. 

From  New  Jersey  (5)  —  William  Livingston, 
David  Brearley,  William  Churchill  Houston, 
William  Paterson,  Jonathan  Dayton. 

From  Pennsylvania  (%)  —  Benjamin  Frank- 
lin, Thomas  Mifflin,  Robert  Morris,  George 
Clymer,  Thomas  Fitzsimons,  Jared  Ingersoll, 
James  Wilson,  Gouverneur  Morris. 

From  Delaware  (5) —  George  Read,  Gun- 
ning Bedford,  Jr.,  John  Dickinson,  Richard 
Bassett,  Jacob  Broom. 

From  Maryland  (5)  —  James  McHenry, 
Daniel  of  St.  Thomas  Jenifer,  Daniel  Carroll, 
John  Francis  Mercer,  Luther  Martin. 

From  Virgi^iia  (7)  —  George  Washington, 
Edmund  Randolph,  John  Blair,  James  Mad- 
ison, Jr.,  George  Mason,  George  Wythe, 
James  McClurg. 

From  North  Carolhia  (5)  —  Alexander 
Martin,  William  Richardson  Davie,  William 
Blount,  Richard  Dobbs  Spaight,  Hugh 
Williamson. 

From  South  Carolina  (4)  —  John  Rutledge, 
Charles  Cotesworth  Pinckney,  Charles  Pinck- 
ney,  Pierce  Butler. 

From  Georgia  (4)  —  William  Few,  Abraham 
Baldwin,  William  Pierce,  William  Houstoun. 


THE   CONSTITUTIONAL  CONVENTION        57 

Of  these,  eight  members  had  signed  the 
Declaration  of  Independence.  The  whole 
number  of  appointments  made  was  sixty-five, 
of  whom  only  fifty-five  attended  the  Con- 
vention; and  of  them  only  thirty-nine  affixed 
their  names  to  the  Constitution  at  the  end  of 
their  deliberations,  three  expressly  refusing, 
and  others  absent. 

Hamilton  was  born  in  Nevis,  one  of  the 
Leeward  Islands;  Wilson  in  Scotland;  Robert 
Morris  and  Davie  in  England.  Paterson,  Fitz- 
simons,  McHenry,  and  Butler  were  of  Irish 
birth.  The  other  delegates  were  native  Amer- 
icans. Some  of  them  had  been  educated  in 
England,  but  most  of  them  in  the  country  of 
their  birth,  which  they  had  rescued  from  for- 
eign domination,  to  which  they  had  given  the 
principles  of  liberty,  and  which  they  now  de- 
sired to  endow  with  the  rights  of  a  republic 
and  with  the  organization  of  a  united,  free, 
and  stable  government. 

The  Convention  at  the  outset  provided  for 
secret  sessions.  The  conflict  of  opinion 
throughout  the  country  was  so  great  that  they 
feared  to  exasperate  existing  divisions,  and  to 
provoke  hostilities  while  their  plan  was  in  con- 
struction, if  each  day's  immature  proceedings 
and  discussions  were  given  to  the  public.  They 
also  believed  that  a  more  sincere  and  frank 
expression  of  personal  opinions  could  be  ob- 


58       EVOLUTION   OF   THE   CONSTITUTION 

tained  from  the  delegates,  and  compromises  of 
jarring  judgments  could  be  better  secured,  if 
they  were  exempt  from  the  exterior  influence  of 
bitter  prejudices.  They  decided,  therefore,  that 
no  communication  of  their  resolutions  should 
be  made  until  the  whole  completed  work  could 
be  laid  before  the  country,  and  that  no  individ- 
ual votes  should  be  recorded,  this  record  being 
made  by  States. 

The  dilatory  arrival  of  the  majority  of  the 
delegations  gave  opportunity  for  private  and 
personal  comparison  of  views  between  the  few 
delegates  who  were  earliest  in  Philadelphia. 
The  members  from  Virginia  met  in  frequent 
consultation,  and  brought  themselves  into 
harmonious  relations  upon  a  rough  draft  of 
constitutional  principles  which  Madison  had 
prepared.  This  document,  modified  by  their 
consultations,  was  afterwards  authoritatively 
presented  to  the  Convention  as  the  plan  of 
Virginia,  The  moral  force  of  the  then  leading 
State  of  the  Confederacy  was  thus,  from  the 
beginning,  thrown  into  the  wavering  balance 
in  favor  of  a  wholly  new  Constitution,  and 
against  any  partial  amendment  of  the  existing 
Articles  of  Confederation.  Her  very  able  del- 
egation succeeded,  though  afterwards  much 
divided  upon  details,  in  keeping  the  action  of 
the  Convention  upon  the  original  basis  pro- 
posed by  them.    The  discussion   upon    their 


THE   CONSTITUTIONAL   CONVENTION       59 

resolutions  began  in  committee  of  the  whole 
house,  Mr.  Gorham,  of  Massachusetts,  in  the 
chair,  on  the  30th  of  May;  and  they  were 
finally  reported,  as  amended,  on  the  19th  day 
of  June,  and  were  before  the  Convention,  as 
from  time  to  time  modified,  until  the  germ 
was  developed  and  ripened  into  the  American 
Constitution  on  September  17,  1787. 

There  were  some  individual  schemes  of 
greater  or  less  scope  offered  by  Charles 
Pinckney  and  by  Hamilton,  but  they  never 
diverted  the  general  course  and  lines  of  de- 
bate. That  of  Charles  Pinckney  is  the  most 
notable,  by  reason  of  the  form  in  which  it  has 
been  published,  and  which  bears  so  striking  a 
resemblance  to  the  Constitution  as  adopted. 
But  his  original  plan  submitted  was  not  pre- 
served, and  that  now  attributed  to  him  lacks 
authenticity.  It  bears  internal  evidence  of 
later  composition,  and  is  in  conflict,  in  some 
of  its  provisions,  with  his  recorded  speeches 
and  letters.  On  the  high  authority  of  Mr. 
Madison  and  of  the  historian  Bancroft  it  must 
be  rejected.  Neither  the  scheme  of  Mr.  Pinck- 
ney nor  that  of  Mr.  Hamilton  is  important  in 
this  recital,  because  neither  of  them  ever 
became  the  base  of  the  Convention's  delibera- 
tions ;  and  the  opinions  of  both  these  distin- 
guished delegates  appear  in  the  course  of  the 
debates  upon  the  three  plans  offered  in  the 


6o       EVOLUTION   OF  THE  CONSTITUTION 

name  of  the  respective  States  of  Virginia, 
Connecticut,  and  New  Jersey. 

New  Jersey,  pressed  between  her  two  large 
and  powerful  neighbors  to  whom  she  was 
liable  to  pay  commercial  tribute,  desired  to 
amend  the  Confederate  articles,  chiefly  that 
duties  might  be  made  to  bear  equally  on  all 
the  States,  preserving  her  state  sovereignty 
and  equality  in  voting  power.  These  points 
granted,  she  would  concede  further  amend- 
ments. 

Connecticut,  also,  desired  to  adhere  to  the 
Confederate  system.  With  a  delegation  un- 
surpassed in  experience,  learning,  and  ability, 
she  appears  to  have  suggested,  about  the  time 
the  Virginia  plan  was  reported,  a  scheme  of 
amendment  of  the  Confederation,  consisting 
of  several  sections,  the  product  of  her  experi- 
ence under  the  infirm  government  then  exist- 
ing. 

Parts  of  both  the  Virginia  and  Connecticut 
propositions  were  accepted  and  parts  refused, 
as  will  appear  by  the  following  analysis  of 
their  principal  clauses  and  the  ultimate  dis- 
position made  of  them. 

In  the  scheme  of  Virginia,  which  fortunately 
had  precedence  in  time  and  in  the  outlined 
completeness  of  its  form,  were  found  the  prin- 
ciples of  a  new  and  thoroughly  constitutional 
government  for  the  whole  people,  combined 


THE   CONSTITUTIONAL  CONVENTION       6i 

for  general  purposes  into  one  nation.  This 
qualification  of  "  national "  occurred  in  it  nine- 
teen times  as  it  went  into  committee  and 
twenty-five  times  as  it  was  reported  from  the 
committee,  and  left  no  doubt  that  it  was  in- 
tended to  substitute  a  new  government  for 
the  whole  country,  to  which  the  States  should 
be  auxiliary  for  only  their  internal  economy 
respectively.  Every  attribute  of  sovereignty 
looking  to  their  relations  beyond  their  own 
respective  geographical  boundaries  was  trans- 
ferred to  the  general  or  "national"  govern- 
ment. The  latter  was  to  be  independent  of 
the  individual  States  and  in  no  way  respon- 
sible to  them.  Its  reliance  was  directly  on  the 
people,  from  whom  it  was  to  choose  its  own 
legislative,  executive,  and  judicial  agents,  who 
should  be  responsible  to  itself  alone. 

OF   THE    LEGISLATIVE    DEPARTMENT. 

Suffrage  in  the  "  national  legislature  "  ought 
to  be  proportioned  to  quotas  of  contribution  or 
the  number  of  free  inhabitants  (refused).  It 
should  consist  of  two  branches,  the  members 
of  the  first  to  be  elected  by  the  people  of  the 
several  States  and  to  receive  a  compensation, 
and  not  to  hold  any  other  office  under  the 
United  States  at  the  same  time  (accepted);  to 
be  ineligible  to  immediate  reelection,  and  to 
be  subject  to  recall  (refused).   Members  of  the 


62       EVOLUTION   OF  THE   CONSTITUTION 

second  House  to  be  chosen  by  the  members 
of  the  first  House  from  among  persons  to  be 
nominated  by  the  state  legislatures  respectively 
(refused),  and  to  be  ineligible  to  immediate  re- 
election (refused).  The"  national  legislature,"  in 
addition  to  the  legislative  rights  already  vested 
in  the  Confederate  Congress,  ought  "  to  have 
the  right  to  legislate  in  all  cases  to  which  the 
separate  States  are  incompetent,  or  in  which 
the  harmony  of  the  United  States  might  be 
interrupted  by  the  exercise  of  individual  legis- 
lation" (limited  to  the  scope  of  granted  powers, 
and  so  adopted);  the  right  to  negative  all  laws 
passed  by  the  several  States  contravening  the 
articles  of  union  (refused);  the  right  to  call 
forth  the  force  of  the  Union  against  any  mem- 
ber of  the  Union  failing  in  its  duty  under 
those  articles  (refused);  each  House  to  have 
the  right  of  originating  all  acts  ("bills  for  rais- 
ing revenue"  limited  to  the  first  branch,  and 
so  adopted). 

EXECUTIVE  DEPARTMENT. 

The  national  executive  ought  to  enjoy  the 
executive  rights  already  vested  in  the  Con- 
federate Congress,  and  have  a  general  authority 
to  execute  the  national  laws  (accepted,  saving 
confirmation  of  certain  acts  by  the  Senate). 
This  executive  to  be  chosen  by  the  national 
legislature  (refused);  and  to  be  ineligible  for  a 


THE   CONSTITUTIONAL  CONVENTION       63 

second  term  (refused);  and,  together  with  a 
portion  of  the  national  judiciary,  to  form  a 
council  of  revision  (refused),  "with  authority 
to  examine  every  act  of  the  national  legislature 
before  it  shall  operate"  (accepted  in  the  veto 
power,  with  reserved  legislative  right  of  two 
thirds). 

JUDICIAL   DEPARTMENT. 

"A  national  judiciary  ought  to  be  estab- 
lished," consisting  of  one  supreme  court  and 
inferior  tribunals  (adopted) ;  to  be  chosen  by 
the  national  legislature  (refused) ;  to  hold  their 
office  during  good  behavior  (adopted);  with 
jurisdiction  over  felonies  on  the  high  seas, 
and  captures,  between  foreigners  and  citizens, 
between  citizens  of  different  States,  over  ques- 
tions of  the  collection  of  the  national  reve- 
nue (adopted);  over  impeachment  of  national 
officers  (refused);  and  questions  which  may 
involve  national  peace  and  harmony  (refused 
in  those  terms). 

MISCELLANEOUS    POWERS. 

Provision  ought  to  be  made  for  admitting 
new  States  out  of  Union  territory  (accepted); 
republican  government  ought  to  be  guaranteed 
to  each  State  (accepted),  and  also  its  territory 
(refused).  All  engagements  of  the  existing 
Congress  to  be  observed  (accepted).  Provisions 


64       EVOLUTION  OF  THE  CONSTITUTION 

to  be  made  for  amendment  of  these  articles, 
to  which  the  assent  of  the  national  legisla- 
ture ought  not  to  be  required  (accepted).  The 
legislative,  executive,  and  judicial  powers  of 
the  several  States  to  be  bound  by  oath  to  sup- 
port the  articles  (accepted).  The  acceptance  of 
these  new  articles  by  the  States  to  be  decided 
by  vote  of  conventions  expressly  called  therefor 
(accepted). 

The  scheme  offered  by  the  State  of  Con- 
necticut differed  from  the  preceding  in  im- 
portant particulars.  Like  the  other,  it  gave 
to  Congress  jurisdiction  over  foreign  and 
interstate  commerce,  with  a  revenue  from  the 
customs  and  the  post-office  (enlarged  and  ac- 
cepted) ;  and  power  to  make  laws  in  all  cases 
which  concerned  their  common  interests,  but 
not  to  touch  the  state  authorities  in  affairs 
concerning  only  the  local  welfare  (accepted  in 
principle).  But  the  laws  of  the  United  States 
covering  the  common  interests  of  the  States 
were  to  be  enforced  by  the  judicial  and  other 
authorities  of  the  States  themselves  (refused). 
For  certain  specific  purposes  the  United  States 
were  to  establish  a  supreme  and  other  neces- 
sary tribunals  (enlarged  and  accepted).  No 
State  could  make  a  currency  of  bills  of  credit 
(accepted),  nor  make  laws  violating  contracts 
where  foreigners  or  citizens  of  other  States 
were  interested  (accepted  with  enlargement). 


THE  CONSTITUTIONAL  CONVENTION       65 

The  Union  treasury  was  to  be  supplied  by  the 
States  in  the  proportion  which  their  respective 
numbers  of  free  inhabitants  —  excluding  un- 
taxed Indians,  and  adding  three  fifths  of  all 
other  persons  —  bore  to  the  whole  (refused). 
Some  provision  might  be  made  for  calling  on 
the  people  by  the  United  States  for  the  en- 
forcement of  their  laws;  and  in  case  of  the 
failure  of  any  State  to  pay  in  its  quota  the 
United  States  could  levy  and  collect  the  same 
directly  from  the  people  of  the  delinquent 
State  (abandoned).  Criminal  trials  must  be 
by  jury,  and  in  the  State  where  the  offence 
was  committed  (accepted). 

The  New  Jersey  system  was  intended  to 
unite  all  the  opponents  of  a  new  and  national 
government,  and  was  purely  federal.  It  con- 
tained some  important  and  useful  amendments 
of  the  existing  Confederation.  It  retained, 
however,  the  Congress  of  a  single  body,  and 
provided  for  the  election  by  it  of  a  plural  ex- 
ecutive, which  was  little  better  than  a  com- 
mittee of  Congress,  because  the  latter  could 
at  any  time  revoke  its  powers  on  demand  of 
the  States.  The  only  direct  revenue  it  granted 
to  the  United  States  was  to  be  derived  from 
duties,  stamps,  and  the  post-office.  For  the 
rest  it  maintained  the  old  system  of  requisi- 
tions, and  gave  primary  jurisdiction  of  most 
federal  questions  to  the  courts  of  the  State, 


66       EVOLUTION   OF  THE   CONSTITUTION 

with  appeal  to  the  Federal  Supreme  Court. 
Many  of  its  provisions  were  concurrent  with 
those  already  approved  in  committee.  But  be- 
ing based  on  the  Confederation,  the  decision 
upon  it  was  adverse,  —  seven  States  to  three, 
with  Maryland  divided. 

The  most  strongly  marked  line  of  division 
in  the  Convention  was  upon  the  question 
whether' the  new  government  should  be  fed- 
eral or  national;  that  is,  whether  it  should 
rest  upon  the  States  as  independent  political 
powers,  or  upon  the  people  of  all  the  States  as 
the  ultimate  source  of  all  political  authority. 
If  the  former  idea  prevailed,  the  new  govern- 
ment would  still  be  a  mere  league,  and  might 
be  dissolved  by  its  members,  like  any  other 
league  between  States.  If  the  national  ideas 
were  dominant,  then  the  new  government 
would  hold  its  powers  direct  from  the  people 
of  the  entire  country  which  should  adhere  to 
the  new  Constitution.  In  this  case  each  sep- 
arate State,  while  exercising  its  retained  do- 
mestic authority  undisturbed,  would  be  merged 
in  the  nation  in  respect  to  all  matters  within 
the  national  jurisdiction.  As  to  these  its  sov- 
ereignty and  its  independence  would  be  lost 
The  power  of  a  State  in  these  relations  be- 
came only  the  power  of  an  individual,  —  that 
of  being  counted.  No  power  of  reserved  and 
final  judgment  could  then  be  claimed  for  a 


THE  CONSTITUTIONAL  CONVENTION        67 

State  without  at  the  same  time  destroying  the 
national  government;  that  is  to  say,  such  a 
judgment  could  only  be  made  effective  by  re- 
bellion and  force  outside  of  the  Constitution. 
It  was  also  distinctly  designed  that  the  people 
—  not  the  States  as  legislative  corporations  — 
should  establish  the  validity  of  the  Constitu- 
tion. Hence  it  was  insisted,  and  finally  resolved 
in  the  new  Constitution,  that  the  people  should 
adopt  it  by  special  conventions  called  for  the 
purpose  of  considering  it.  Thus  they  resorted 
to  a  power  behind  the  state  legislatures,  be- 
hind even  their  constitutions,  for  the  sanction 
of  the  new  instrument,  and  as  the  original 
source  of  the  new  national  rights.  For  this 
purpose  the  States  were  employed  only  as 
necessary  geographical  circumscriptions  for 
obtaining  the  vote  which  bound  the  state 
corporation  to  the  Union,  as  counties  and 
towns  are  employed  for  the  returns  of  the 
popular  suffrages  in  state  elections  and  on 
questions  of  annexation  of  territory.  That 
popular  affirmation  then  becomes  a  finality. 

This  is  the  logical  thread  which  will  safely 
conduct  us  through  the  mazes  of  our  constitu- 
tional history,  and  through  the  long  debates 
of  its  formative  period,  and  even  of  the  later 
period  of  the  construction  given  to  that  in- 
strument by  the  great  tribunal  which  it  estab- 
lished.   In  the  beginning  it  was  the  "United 


68       EVOLUTION   OF  THE  CONSTITUTION 

States  of  America"  who  appealed  "to  the 
Supreme  Judge  of  the  world  for  the  rectitude 
of  their  intentions,"  and  "in  the  name  and  by 
the  authority  of  the  good  people  of  these  col- 
onies" declared  freedom  and  independence. 
It  was  only  the  "  United  States  "  which  then 
claimed  the  right  to  levy  war,  conclude  peace, 
contract  alliances,  and  do  all  other  acts  belong- 
ing of  right  to  independent  States.  Nowhere 
are  these  acts  and  powers  said  to  belong  to  each 
of  them.  But  this  declaration  established  no 
rights;  it  only  expressed  theories  and  aspira- 
tions. Conflict  in  financial  and  military  inter- 
ests between  the  States  very  soon  threw  them 
back  upon  their  individuality  acquired  under 
colonial  charters.  Their  melancholy  experi- 
ence of  disunited  action  during  the  war  next 
inclined  them  to  the  formation  of  some  sort 
of  new  common  bond  and  common  authority. 
Then  they  adopted  the  "  Articles  of  Confedera- 
tion and  Perpetual  Union,"  which  they  styled 
"  a  firm  league  of  friendship  with  each  other," 
and  in  which  "  each  State  "  now  appears,  retain- 
ing "  its  sovereignty,  freedom,  and  independ- 
ence," and  only  delegating  certain  functions 
of  state  to  the  "United  States  in  Congress 
assembled."  Further  to  express  its  character 
as  a  league,  a  compact,  and  not  a  nation,  each 
State  expressly  reserved  its  right  to  an  equal 
vote,  and  to  recall  its  delegates  at  any  time  and 


THE   CONSTITUTIONAL  CONVENTION       69 

send  others  at  will,  only  limiting  the  number  of 
delegates  to  seven  as  the  maximum  and  two  as 
the  minimum  from  each  State.  They  had  no 
revenue  except  what  each  State  should  give. 
Nor  could  the  assembly  so  constituted  act  by  a 
majority  of  members,  or  even  of  States.  In  all 
the  more  important  matters  the  consent  of  nine 
States  was  required.  Any  alteration  in  the  ar- 
ticles required  the  approval  of  every  individual 
State.  Thus  state  rights  were  *  not  only  ob- 
served, but  strongly  established  by  this  first 
compact  or  treaty.  This  was  a  government 
resting  upon  and  deriving  its  powers  solely 
from  the  States  as  corporate  bodies. 

We  have  already  traversed  the  time,  strewn 
with  disasters  and  marked  by  disorders  increas- 
ing as  time  elapsed,  during  which  the  American 
States  and  people  became  wholly  alienated 
from  this  empty  form  of  government,  which 
had  indeed  brought  on  them  bitter  reproaches 
at  home  and  disdain  abroad.  We  are  prepared 
to  witness  the  reappearance  of  the  national 
conception  of  government,  returning  in  flood- 
tide  to  the  minds  of  the  patriotic  builders  of 
government.  The  leap  from  the  confederate 
league  to  the  constitutional  union,  long  as  it 
was,  becomes  only  the  dictate  of  experience. 
The  corporate  States  no  more  appear  as  foun- 
tains of  national  authority,  revocable  at  will. 
This  act,  like  that  of  the  Declaration  of  In- 


70       EVOLUTION   OF   THE   CONSTITUTION 

dependence,  is  in  the  name  of  the  people. 
"  We,  the  people  of  the  United  States,  .  .  . 
ordain  and  establish  this  Constitution  for  the 
United  States  of  America."  We  observe  that 
the  Confederation  was  "between  the  States," — 
"  the  said  States  hereby  severally  enter  into  a 
firm  league."  The  greater  sovereignty  of  the 
people  was  ignored.  Now,  however,  this  ulti- 
mate popular  sovereignty  is  in  the  forefront, 
and,  by  "ordaining  the  Constitution  for  the 
United  States,"  imposes  its  will  on  the  sepa- 
rate States  as  represented  by  legislatures,  and 
overrides  state  constitutions  and  state  laws. 
It  thus  asserts  its  overruling  authority  in  the 
opening  clause  of  the  Constitution;  it  requires 
all  state  officers  to  take  oath  to  support  it; 
and  confirms  it  by  the  people's  ratification  as 
required  by  its  final  clause.  The  alpha  and  the 
omega  recognize  only  the  people,  and  not  the 
corporate  States,  as  ordainers  of  the  new  Con- 
stitution. The  words  "  league"  and  "  compact " 
disappear,  and  the  principles  they  represent  are 
annihilated  by  the  people's  sovereign  will. 

The  motives  for  this  radical  and  mighty 
change  in  the  form  of  government  can  be 
traced  in  the  record  of  past  events.  It  becomes 
very  apparent  as  we  pursue  the  course  of  the 
debates  in  the  Convention,  where  its  im- 
portance was  so  fully  recognized,  that  the 
decisions  of  that  body  on  the  issues  between 


THE  CONSTITUTIONAL  CONVENTION       71 

the  partisans  of  the  national  and  of  the  con- 
federate plans  caused  the  withdrawal  of  some 
state  sovereignty  members  and  the  abstention 
of  some  hesitating  unionists.     ' 

Governor  Randolph,  in  his  opening  speech 
recommending  the  national  plan  of  Virginia, 
said,  "  We  ought  to  be  one  nation."  A  resolu- 
tion prepared  by  Gouverneur  Morris  was  early 
accepted  by  six  States  against  one,  "that  a 
national  government  ought  to  be  established 
consisting  of  a  supreme  legislative,  executive, 
and  judiciary."  And  it  was  avowed  that  this 
supremacy  meant  that  in  collisions  of  authority 
between  Union  and  State  the  former  must 
prevail.  Morris  enforced  his  proposition,  say- 
ing, "In  all  communities  there  must  be  one 
supreme  power,  and  one  only.  A  confederacy 
is  a  mere  compact,  resting  on  the  good  faith  of 
the  parties.  A  national,  supreme  government 
must  have  a  complete  and  compulsive  opera- 
tion." Mason,  of  Virginia,  struck  the  vital  chord 
of  our  system  when  he  said,  "  In  the  nature  of 
things  punishment  cannot  be  executed  on  the 
States  collectively;  therefore  such  a  govern- 
ment is  necessary  as  can  operate  directly  on 
individuals."  Lansing,  of  New  York,  who  after- 
wards seceded,  moved  to  give  States  an  equality 
of  power  even  in  the  first  branch  of  the  national 
legislature,  and  said  thereupon,  "  The  sense  of 
the  Convention  on  this  point  will  determine 


72       EVOLUTION  OF  THE   CONSTITUTION 

the  question  of  a  federal  or  national  govern- 
ment." His  motion  was  defeated,  obtaining 
but  four  votes  out  of  eleven,  establishing  it  as 
the  people's  government  in  distinction  from 
that  of  the  States. 


VI 


THE  DEBATE  ON  THE  LEGISLATIVE 
ORGANIZATION 

There  was  a  general  conviction  that  the  legis- 
lature for  the  Union  should  be  composed  of 
two  branches.  Pennsylvania  appeared  to  have 
doubts,  and  her  delegation  alone  interrupted 
at  the  time  the  unanimity  of  voices  on  this 
vote ;  but  later  they  also  gave  their  adhesion. 

When  the  next  question  came,  how  these 
two  branches  should  be  chosen,  the  debate 
became  interesting  and  much  more  obstinate. 
Were  the  States  to  retain  their  equality  of 
suffrage  as  in  the  Confederacy  ?  Should  all  the 
States  have  votes  proportioned  to  their  popu- 
lation ?  Should  this  proportion  prevail  in  both 
branches  of  the  new  legislature?  Should  the 
members  of  both  Houses  be  appointed  by  the 
legislatures  of  States  or  by  the  people  ?  Great 
diversity  of  opinion  appeared  on  all  these 
points,  and  particularly  between  the  repre- 
sentatives of  large  and  of  small  States. 

Hamilton  demanded  that  suffrage  in  the 
national  legislature  should  be  proportioned  to 
the  number  of  free  inhabitants.  Madison,  in- 
clined to  feel  his  way  more  cautiously,  offered 


74       EVOLUTION   OF  THE  CONSTITUTION 

a  resolution  which  simply  declared  against 
equality  of  suffrage  as  provided  by  the  Articles 
of  Confederation,  and  for  an  equitable  ratio  of 
representation  instead.  He  argued  that,  while 
"equality  of  suffrage  may  be  reasonable  in  a 
federal  union  of  sovereign  States,  it  can  find  no 
place  in  a  national  government."  This  ques- 
tion was  vital  to  the  delegation  from  Dela- 
ware, who  came  specifically  instructed  to  insist 
on  the  equality  of  state  suffrage.  The  larger 
States  felt  sharply  the  injustice  which  existed 
for  them  in  any  government  where  a  small 
population,  small  revenues,  and  small  indus- 
trial interests  should  exert  an  equal  influence 
over  legislation  with  those  of  vastly  greater 
extent.  The  small  States,  on  the  other  hand, 
feared  to  be  reduced  to  a  nullity,  with  all  their 
separate  interests,  if  they  did  not  obtain  for  the 
future  the  same  equality  which  had  existed  in 
the  past.  The  debate  then  took  a  wider  range, 
and  brought  into  collision  the  nationalists 
and  the  federalists  on  the  question  whether 
the  members  of  the  proposed  Congress  of  two 
branches  should  be  elected  by  the  people,  or 
appointed  by  the  legislatures  of  the  respective 
States. 

The  advocates  of  state  sovereignty  de- 
manded that  the  state  government  should 
furnish  the  agents  necessary  to  the  execution 
of  the  affairs  of  the  new  Union.   They  still 


THE   LEGISLATIVE  ORGANIZATION  75 

clung  to  the  theory  of  a  general  government 
whose  powers  were  delegated  by  the  several 
States,  and  not  derived  from  the  people  them- 
selves, who  were  higher  authority  than  the 
States.  The  equally  logical  nationalists,  cling- 
ing to  their  purpose  of  a  government  with  in- 
herent powers,  to  be  conferred  by  a  charter 
deriving  its  validity  directly  from  the  people, 
and  not  through  the  state  governments,  de- 
manded the  election  of  one  or  both  branches 
by  the  people.  Some  extraordinary  views  were 
presented  by  members  while  advocating  their 
respective  theories.  "  The  people  should  have 
as  little  to  do  as  may  be  about  the  govern- 
ment :  they  lack  information  and  are  constantly 
liable  to  be  misled  ;  the  election  ought  to  be  by 
the  state  legislatures,"  said  a  voice  from  Con- 
necticut. Charles  Pinckney  and  John  Rutledge 
also  demanded  the  elective  power  for  the  legis- 
latures of  the  States,  the  former  regarding 
the  people  as  incompetent  to  choose  wisely. 
Said  Gerry,  of  Massachusetts,  "  The  people  do 
not  lack  virtue,  but  they  are  the  dupes  of  pre- 
tended patriots." 

On  the  other  hand,  Wilson,  of  Pennsylvania, 
keen  in  perception,  strong  in  expression,  and 
able  in  debate,  replied,  "Without  the  confi- 
dence of  the  people  no  government,  least  of 
all  a  republican  government,  can  long  subsist 
Besides,  the  weight  of  the  state  legislatures 


76       EVOLUTION  OF  THE  CONSTITUTION 

ought  not  to  be  increased  by  making  them 
the  electors  of  the  national  legislature.  Vig- 
orous authority  should  flow  immediately  from 
the  source  of  all  authority,  —  the  people.  Re- 
presentation ought  to  be  the  exact  transcript  of 
the  whole  society."  Mason  thought  the  "  larger 
branch  should  be  the  grand  depository  of 
the  democratic  principle  of  the  government. 
Under  the  existing  confederacy  Congress  re- 
presents the  States,  not  the  people  of  the  States ; 
their  acts  operate  on  the  States,  not  on  indi- 
viduals. In  the  new  plan  of  government  the 
people  will  be  represented ;  they  ought,  there- 
fore, to  choose  the  representatives."  Roger 
Sherman  thought  the  question  involved  the 
very  existence  of  state  governments.  "  If  it  is 
in  view,"  said  he,  "  to  abolish  the  state  govern- 
ments, the  elections  ought  to  be  by  the  people. 
If  they  are  to  be  continued,  the  elections  to  the 
national  government  should  be  made  by  them." 
Alexander  Hamilton,  opposing  his  colleague, 
Lansing,  affirmed  emphatically,  "  It  is  essen- 
tial to  the  democratic  rights  of  the  community 
that  the  first  branch  be  directly  elected  by  the 
people."  Mason  added,  "  It  is  the  only  security 
for  the  rights  of  the  people."  Rutledge  claimed 
that  elections  by  the  legislature  would  be  "  a 
refining  process."  Wilson  answered  South 
Carolina  with  the  declaration,  "  The  election 
of  the  first  branch  by  the  people  is  not  the 


THE   LEGISLATIVE   ORGANIZATION  tj 

corner-stone  only,  but  the  foundation  of  the 
fabric."  And  this  was  emphatically  true,  be- 
cause the  new  plan  was  built  upon  the  sov- 
ereignty of  the  people,  not  on  the  States. 

Most  of  the  large  States  were  earnest  in 
repudiating  an  equal  and  in  demanding  a 
proportional  representation  in  both  Houses, 
and  some  of  the  delegates  insisted  that  both 
should  be  elected  by  the  people.  The  patri- 
otic Dickinson,  mindful  of  his  instructions 
from  Delaware,  and  recognizing  as  well  the 
necessity  of  some  compromise  of  opinion  be- 
tween the  opposing  elements,  proposed  that 
one  branch  should  be  elected  by  the  people, 
the  other  by  the  legislature,  in  which  Pierce, 
of  Georgia,  concurred.  It  was  a  sagacious 
movement  towards  reconciliation  of  the  States, 
and  was  also  a  step  towards  the  establishment 
of  equal  state  representation  in  the  second 
branch  of  Congress.  But  Madison  strenuously 
resisted  it  to  the  last.  He  said,  "To  depart 
from  proportional  representation  in  the  Senate 
is  inadmissible,  being  evidently  unjust.  The 
use  of  the  Senate  is  to  consist  in  its  proceed- 
ing with  more  coolness,  system,  and  wisdom 
than  the  popular  branch.  Enlarge  their  num- 
ber, and  you  communicate  to  them  the  vices 
they  were  meant  to  correct." 

Dickinson  still  insisted  that  "  the  preserva- 
tion of  the  States  in  a  certain  degree  of  agency 


78        EVOLUTION   OF  THE   CONSTITUTION 

was  indispensable.  The  proposed  national  sys- 
tem is  like  the  solar  system,  in  which  the  States 
are  the  planets,  and  they  ought  to  be  left  to 
move  more  freely  in  their  proper  orbits." 

Wilson,  who  declared  himself  for  the  elec- 
tion of  the  second  branch  also  by  the  people 
in  large  districts,  rejoined,  with  far-seeing 
vision,  "  The  States  are  in  no  danger  of  being 
devoured  by  the  national  government :  I  wish 
to  keep  them  from  devouring  the  national 
government.  Their  existence  is  made  essen- 
tial by  the  great  extent  of  our  country." 

The  weight  of  Gerry  and  of  Sherman  was 
thrown  on  the  side  of  elections  to  the  second 
branch  by  the  legislature.  Charles  Pinckney 
threw  into  the  debate  the  fruitless  suggestion 
that  the  States  might  be  periodically  divided 
into  three  classes,  according  to  their  popula- 
tion, and  one,  two,  or  three  senators  allowed 
to  them,  according  to  their  relative  importance. 
The  coming  result  of  the  long  debate  was 
indicated  by  the  forcible  remarks  of  Mason, 
of  Virginia,  that  "  the  state  legislatures  ought 
to  have  some  means  of  defending  themselves 
against  encroachments  of  the  national  govern- 
ment. What  better  means  can  we  provide 
than  to  make  them  a  constituent  part  of  the 
national  establishment?"  The  opposition,  in 
order  to  bring  in  the  smaller  States,  at  last 
yielded  this  point  of  senatorial  election  by  leg- 


THE  LEGISLATIVE   ORGANIZATION  79 

islatures  as  preliminary  to  equality  of  state 
representation  in  the  second  branch ;  and  the 
choice  of  senators,  whatever  their  number, 
was  by  general  consent  conceded  to  the  state 
legislatures,  and  the  choice  of  the  first  branch 
was  given  to  the  people. 

There  still  remained  the  vital  question  be- 
tween large  and  small  States,  What  should  be 
the  ratio  of  their  representation  in  each  of  the 
two  Houses?  The  struggle  over  this  point 
was  so  severe  and  threatening  that  the  vener- 
able Franklin  intervened  to  moderate  its  ardor, 
and  begged  the  disputants  to  remember  that 
their  duty  was  to  consult  rather  than  contend. 
New  Jersey  delegates  were  firmly  hostile  to 
any  plan  which  should  destroy  the  equality  of 
the  States.  The  great  States,  with  the  excep- 
tion of  New  York,  were  equally  determined 
to  maintain  their  right  to  a  representation 
proportioned  to  their  numerical  superiority. 
The  test  was  first  taken  on  the  first  House, 
representing  the  people  in  distinction  from 
the  States.  The  Convention,  remembering  a 
former  conciliatory  proposition  to  supply  the 
common  treasury  in  the  proportion  of  the 
number  of  free  inhabitants  with  the  addition 
of  three  fifths  of  other  persons,  excluding  un- 
taxed Indians,  turned  to  this  rule  of  direct 
taxation  for  the  ratio  of  their  representation 
in  the  national  House  of  Representatives.    It 


So        EVOLUTION  OF  THE  CONSTITUTION 

was  only  adopted  by  a  majority  vote.  Mas- 
sachusetts, Pennsylvania,  Virginia,  the  two 
Carolinas,  and  Georgia,  in  this  supported  by 
Connecticut,  gave  the  proposition  seven  votes, 
with  Maryland  divided.  New  York,  overruling 
Hamilton,  placed  herself  in  opposition  by  the 
side  of  New  Jersey  and  Delaware,  New  Hamp- 
shire and  Rhode  Island  being  absent. 

Connecticut,  having  given  that  very  impor- 
tant vote  which  made  up  the  majority  of  all 
the  thirteen  States  for  the  preceding  proposi- 
tion, naturally  considered  herself  entitled  to  a 
potential  voice  in  settling  the  question  of  the 
second  House.  Roger  Sherman  said  emphati- 
cally that  each  State  should  have  one  vote  in 
the  Senate.  "  Everything  depends  on  this : 
the  smaller  States  will  never  agree  to  the 
plan  on  any  other  principle  than  an  equality 
of  suffrage  in  this  branch."  But  for  the  time 
this  principle  was  defeated  by  a  vote  of  six 
to  five,  and  the  rule  of  proportional  suf- 
frage already  applied  to  the  other  House 
was  adopted  for  the  Senate  by  the  same  vote 
of  six  to  five,  Maryland  and  Connecticut  join- 
ing the  other  three  minority  States.  Only 
one  senator  was  assured  to  the  small  States 
against  several  to  their  more  populous  competi- 
tors. Not  long  afterwards  the  necessity  for 
further  concessions  from  the  Virginia  project 
became  apparent,  and  Franklin,  with  Davie  of 


THE  LEGISLATIVE   ORGANIZATION  8i 

North  Carolina,  encouraged  the  demand  of 
the  smaller  States  for  equality  of  representa- 
tion in  the  Senate.  This  equality  of  the 
States  in  that  branch  seemed  to  them  the 
only  means  of  saving  the  Constitution  from 
threatened  defeat  at  its  inception. 

Before  this  result  was  reached  the  debates 
indicate  an  agony  of  experience  in  the  Con- 
vention, tending  to  breed  despair  in  the  hearts 
of  the  most  faithful  patriots.  The  Virginia 
plan,  modified  and  improved,  had  been  suc- 
cessfully reported,  instead  of  the  New  Jersey 
plan,  from  the  Committee  of  the  Whole  on 
June  19th.  The  "national"  idea  having  been 
clearly  established  by  the  majority,  Ellsworth, 
of  Connecticut,  who  had  himself  accepted  it, 
saw  the  propriety  of  removing  from  the  text 
a  word  which  gave  needless  alarm  to  New 
Jersey  and  Delaware ;  and  he  moved  the  sub- 
stitution of  the  description,  "  the  government 
of  the  United  States,"  instead  of  "  the  national 
government,"  in  accordance  with  the  sugges- 
tion of  Dickinson.  As  the  substance  remained, 
the  majority  at  once  concurred  in  that  propo- 
sition, and  without  dissent.  But  Lansing  and 
Yates,  of  New  York,  who  had  rarely  made 
any  contribution  towards  the  harmony  of  the 
Convention,  and  who  formed  the  majority  of 
their  state  delegation,  were  resolved  against 
yielding  to  any  concession.    Lansing,  ignoring 


82        EVOLUTION   OF  THE   CONSTITUTION 

the  progress  already  made,  moved  a  return 
to  the  federal  plan,  and  supported  it  by  an 
inharmonious  and  discouraging  speech,  assail- 
ing the  powers  of  the  Convention.  Mason 
responded  with  indignation  against  the  re- 
opening of  a  question  which  should  now  be 
considered  as  definitely  settled  by  the  Con- 
vention. The  motion  was  of  course  defeated, 
and  the  discussion  proceeded  upon  the  manner 
in  which  the  two  Houses  should  be  constituted. 
Wilson  made  an  effort  to  lift  the  eyes  of 
his  associates  from  the  narrow  ground  of  local 
and  transient  interests.  In  view  of  the  vast 
extent  of  the  territory,  the  immense  population 
destined  to  occupy  it,  and  the  future  influence 
of  its  government  over  the  whole  globe,  he 
said,  "  I  am  lost  in  the  magnitude  of  the  ob- 
ject. We  are  laying  the  foundation  of  a  build- 
ing in  which  millions  are  interested,  and  which 
is  to  last  for  ages.  ...  A  citizen  of  America 
is  a  citizen  of  the  general  government,  and  a 
citizen  of  the  particular  State  in  which  he 
may  reside.  The  general  government  is  meant 
for  them  in  the  first  capacity ;  the  state  gov- 
ernment in  the  second.  .  .  .  The  general 
government  is  not  an  assemblage  of  states, 
but  of  individuals,  for  certain  political  pur- 
poses ;  it  is  not  meant  for  the  States,  but  for 
the  individuals  composing  them.  The  individ- 
uals, therefore,  not  the  States,  ought  to   be 


THE   LEGISLATIVE   ORGANIZATION  83 

represented  in  it."  He  adhered  to  the  idea  of 
popular  representation  in  the  Senate  as  well 
as  the  House,  and  thought  senators  might  be 
appointed  by  electors  chosen  by  the  people,  or 
by  their  legislature.  The  local  views  and  feel- 
ing would  "  find  their  way  into  the  general 
council,  through  whatever  channel  they  may 
flow." 

Before  fixing  the  number  of  senators,  they 
discussed  their  tenure  of  office,  it  being  ad- 
mitted that  they  should  retire  by  classes  in 
such  a  manner  that  the  body  should  be  more 
frequently  renewed  by  fractions  of  its  whole 
number.  The  terms  of  four,  six,  seven,  and 
nine  years,  and  during  good  behavior,  were 
in  turn  suggested,  the  latter,  however,  failing 
of  support.  Gorham,  of  Massachusetts,  and 
Wilson,  of  Pennsylvania,  proposed  the  mean 
of  six  years,  with  biennial  renewals  of  one 
third,  which  was  carried  by  the  votes  of  seven 
States  against  four. 

Again  was  presented  the  question  of  the 
voting  equality  of  States  in  the  two  Houses  as 
the  vital  point  of  discussion,  which,  from  the 
refusal  of  some  of  the  members  to  accept  any 
decision  as  final,  had  become  not  only  threat- 
ening, but  exasperating.  When  Rutledge  now 
brought  forward  the  subject,  Martin,  of  Mary- 
land, who  seemed  more  persistent  in  presenting 
his  own  views  than  those  of  his  State,  directed 


84        EVOLUTION   OF  THE   CONSTITUTION 

his  assault  upon  a  point  which  perhaps  more 
than  any  other  had  been  decisively  settled,  — 
that  this  general  government  was  to  operate 
upon  individuals  and  not  through  the  state 
governments.  He  went  so  far  as  to  predict 
the  defeat  of  the  plan  by  the  influence  of 
Governor  Clinton  in  New  York.  One  heated 
speech  produced  others,  and  the  strongest 
men  of  the  Convention  met  in  the  fray.  All 
discordant  views,  ranging  from  a  continuance 
of  the  old  federation  to  a  solid  government  of 
the  Union  in  which  States  should  stand  to  the 
general  government  in  the  relation  of  counties 
to  a  State,  found  urgent  and  sometimes  pas- 
sionate expression.  It  was  afterwards  written 
of  that  time  by  one  of  the  participators  in  the 
debate,  that  the  Convention  was  on  the  verge 
of  dissolution,  scarcely  held  together  by  the 
strength  of  a  hair.  It  was  then  that  the  aged 
Franklin  urged  his  colleagues  to  invoke  pub- 
licly and  daily  the  aid  of  the  Almighty,  that 
they  who  labored  to  build  the  house  might 
not  build  in  vain. 

On  the  following  days  the  debate  proceeded 
with  more  moderation.  Gorham  said,  impres- 
sively, "  A  union  of  the  States  is  necessary  to 
their  happiness,  and  a  firm  general  government 
is  necessary  to  their  union."  "The  States," 
said  Madison,  in  reply  to  the  claim  that  they 
each  became  sovereign  by  the  acquisition  of 


THE   LEGISLATIVE   ORGANIZATION  S5 

their  independence  of  England,  —  "  the  States 
never  possessed  the  essential  rights  of  sover- 
eignty ;  these  were  always  vested  in  Congress. 
Voting  as  States  in  Congress  is  no  evidence 
of  sovereignty.  The  State  of  Maryland  voted 
by  counties:  did  this  make  the  counties  sov- 
ereign ?  The  States,  at  present,  are  only  great 
corporations,  having  the  power  of  making  by- 
laws not  contradictory  to  the  general  Confed- 
eration." Hamilton  asked  if  each  citizen  of 
Delaware  would  have  less  liberty  because  each 
citizen  of  Pennsylvania  had  an  equal  vote 
with  him.  He  said  the  contest  was  for  power, 
not  for  liberty.  It  was  then  settled,  for  the 
last  time,  that  in  the  first  branch  the  voting 
should  be  in  the  ratio  of  population  ;  and,  as 
to  this  House,  equality  of  state  suffrage  was 
abandoned,  though  the  vote  stood  six  to  four, 
with  Maryland  divided. 

In  the  same  improved  temper  the  Conven- 
tion continued  the  debate  upon  the  voting 
power  of  States  in  the  Senate.  Many  of  the 
members  recognized  in  the  country  a  wealthy 
class  and  a  poor  class,  a  gentry  and  a  com- 
monalty, and  remembered  that  in  most  if  not 
all  of  the  States  at  that  time  there  was  a  pro- 
perty qualification.  These  claimed,  some  that 
the  Senate  should  represent  the  aristocratic 
classes,  as  the  other  House  did  the  democratic ; 
some  that  it  should  be  so  composed  as  to  re- 


86        EVOLUTION   OF  THE   CONSTITUTION 

present  the  interests  of  property,  which  would 
not  find  a  defence  in  the  popular  branch. 
Both  had  their  influence  in  taking  the  election 
of  senators  from  the  people  and  vesting  it  in 
the  legislatures,  and  also  in  restricting  the 
number  of  that  body.  Madison  maintained 
there  was  no  danger  to  individual  States,  but 
there  was  danger  between  North  and  South 
from  difference  of  climate,  and  especially  from 
the  existence  of  slavery ;  and  was  inclined  to 
provisions  which  should  give  the  South  advan- 
tageous powers  of  defence  against  the  North. 
Some  new  propositions,  with  confusion  and 
excitement,  again  crept  into  the  discussion 
before  the  vote  was  taken  on  equal  suffrage 
of  the  States  in  the  Senate.  This  vote  was 
now  again  taken,  and  resulted  in  a  tie,  Georgia 
being  divided  in  order  to  save  the  bad  effect 
upon  the  Convention  of  a  final  defeat  of  the 
smaller  States. 

Charles  Cotesworth  Pinckney  then  recurred 
to  the  suggestion  of  Franklin  for  a  compro- 
mise, and  moved  the  appointment  of  a  grand 
committee,  with  a  delegate  from  each  State, 
to  report  a  measure  covering  both  branches  of 
the  legislature.  Roger  Sherman  indorsed  it, 
saying,  "  Such  a  committee  is  necessary  to  set 
us  right."  The  committee  was  appointed,  and 
consisted  of  Franklin,  Gerry,  Ellsworth,  Yates, 
Paterson,  Bedford,  Martin,  Mason,  Davie,  and 


THE   LEGISLATIVE   ORGANIZATION  87 

Baldwin.  It  signified  a  compromise,  for  which, 
in  fact,  the  Convention  was  prepared,  because 
they  knew  that  New  Hampshire  and  Rhode 
Island,  if  present,  would  convert  the  minority 
into  a  majority.  The  discussion  had  clearly 
proved  that  it  was  not  really  a  question  of 
safety  to  States  or  liberty  to  individuals,  but  a 
question  of  relative  power  between  States  in 
legislation  affecting  their  respective  interests. 
As  such  it  must  be  in  some  manner  compro- 
mised, and  the  Convention  gave  three  days 
to  the  exclusive  service  of  the  committee  by 
an  adjournment  for  that  period. 

Franklin  had  observed  the  course  of  the 
debate  with  equal  eyes,  and  no  proposition 
emanating  from  him  could  be  regarded  with 
suspicion.  He  was  always  moderate,  always 
sincere.  The  committee  under  his  guidance 
proposed  (i)  one  member  in  the  first  House 
for  every  forty  thousand  inhabitants,  including 
all  free  persons  and  three  fifths  of  other  per- 
sons ;  (2)  each  State  to  have  an  equal  voice  in 
the  second  branch ;  (3)  the  first  branch  alone 
to  have  the  power  to  originate  taxes  and 
appropriations. 

Immediately  on  presentation  of  this  report 
it  was  assailed  by  Wilson  and  Madison,  the 
champions  of  proportional  representation,  by 
Butler,  and  by  Gouverneur  Morris.  The  latter 
said,  "  State  attachments  and  state  importance 


88        EVOLUTION  OF  THE   CONSTITUTION 

have  been  the  bane  of  our  country.  We  cannot 
annihilate  the  serpents,  but  we  may  perhaps 
take  out  their  teeth.  .  .  .  Property,  not  liberty, 
is  the  main  object  of  society.  The  savage  state 
is  more  favorable  to  liberty  than  the  civilized, 
and  was  only  renounced  for  the  sake  of  pro- 
perty." Numbers  alone,  in  his  opinion,  could  not 
furnish  a  just  rule  of  representation.  Rutledge 
confirmed  the  statement  that  "property  was 
certainly  the  principal  object  of  society."  The 
report  was  more  quietly,  but  firmly,  defended 
by  Ellsworth,  Gerry,  and  Mason.  The  last 
said,  wearily,  "  I  will  bury  my  bones  in  this 
city  rather  than  expose  my  country  to  the  con- 
sequences of  a  dissolution  of  the  Convention 
without  anything  being  done."  Rufus  King 
said,  "  Property  is  the  primary  object  of  society, 
and  in  fixing  a  ratio  ought  not  to  be  excluded 
from  the  estimate."  Butler  pronounced  "  pro- 
perty the  only  just  measure  of  representation." 
Wilson  denied  that  it  was  the  sole  or  even  pri- 
mary object  of  government  and  society.  "  The 
improvement  of  the  human  mind  is  the  most 
noble  object."  And  so  the  question  of  ratio  of 
representation  in  the  popular  branch  was,  on 
motion  of  Gouverneur  Morris,  again  referred, 
this  time  to  a  special  committee  of  five.  In 
addition  to  the  proposer,  Gorham  and  King, 
both  of  Massachusetts,  with  Randolph  and  Rut- 
ledge,  were  appointed  on  the  committee. 


THE   LEGISLATIVE   ORGANIZATION  89 

The  report  of  this  committee  of  five  was 
confusing  to  all  sides.  It  proposed  fifty-six 
members  of  the  first  branch,  at  the  first  elec- 
tion, and  apportioned  them  among  the  States 
in  such  manner  as  to  give  twenty-six  to  the 
Southern  States  and  thirty  to  the  Northern.  It 
next  provided,  in  view  of  progressive  changes 
in  wealth  and  numbers,  that  the  general  legis- 
lature be  authorized  to  augment  the  number 
from  time  to  time,  and  also  to  fix  the  number, 
in  case  of  the  organization  of  new  States,  on 
the  basis  of  their  wealth  and  number  of  inhab- 
itants. Here  was  formally  introduced  the  prin- 
ciple of  the  representation  of  wealth.  That 
principle  was  then  adopted,  nine  States  against 
two,  but  was  not  destined  to  remain.  After 
further  reference  of  the  first  clause  to  a  grand 
committee,  the  Convention  accepted  their  re- 
port upon  it,  which  changed  the  number  of  the 
first  House  from  fifty-six  to  sixty-five,  and  in  a 
proportion  which  gave  the  Southern  States 
thirty  and  the  Northern  thirty-five  members, 
and  ratified  it  by  a  vote  of  nine  States  against 
two. 

In  respect  to  future  and  increased  repre- 
sentation from  old  and  new  States  it  was  con- 
tended, on  the  one  hand,  that  the  Atlantic 
States  should  always  retain  a  majority  of  re- 
presentatives over  the  growing  West,  which 
might  otherwise  by  its  numbers  overrule  their 


90        EVOLUTION   OF  THE   CONSTITUTION 

interests ;  and,  on  the  other,  that  the  South- 
ern States  would  yet  have  "  three  fourths  of  the 
people  of  America  within  their  limits ;  "  and 
some  uniform  standard  of  enumeration  should 
be  established  which  would  assure  to  them  a 
right  to  proportionate  representation.  All  the 
States,  including  the  Western,  must  be  treated 
as  equals,  and  no  distinctions  were  admissible, 
according  to  Randolph  and  Madison.  Enumer- 
ation of  population,  said  others,  would  be  a 
sufficient  indication  of  relative  wealth.  The 
question  became  commingled  with  that  of  slav- 
ery and  that  of  direct  taxation,  and  involved, 
also,  that  of  relative  political  power  in  States 
and  between  different  sections  of  the  Union, 
and  produced  a  long  and  sharp  debate.  In  the 
end  they  fell  back  on  the  taxing  rule  which 
had  been  once  adopted,  and  which  based  popu- 
lar representation  on  the  number  of  free  in- 
habitants, with  three  fifths  of  the  slaves ;  and 
the  Convention  added  a  decennial  census  to 
regulate  the  increase  of  representation  in  the 
future.  New  States  were  to  be  governed  by  the 
same  standard. 

The  question  of  the  Senate  was  at  last  regu- 
lated by  an  agreement  that  each  State  should 
be  represented  by  two  senators,  "  who  shall  vote 
per  capital  Two  opposite  political  objects  were 
secured  by  this  last  senatorial  adjustment.  The 
States  had  an  equal  representation,  as  the  small 


THE  LEGISLATIVE   ORGANIZATION  91 

States  demanded;  but  the  individuals  voted, 
as  the  large  States  desired,  and  not  the  States, 
thus  preserving  the  national  principle.  The 
state  legislatures  became  simply  electoral  bod- 
ies to  provide  national  senators.  It  passed  by 
nine  votes  against  Maryland  alone.  Thus 
terminated  a  contest  which  at  one  time  threat- 
ened to  defeat  all  the  efforts  of  the  Convention 
for  a  more  perfect  Union.  The  effect  of  this 
adjustment  was  the  pacification  of  the  small 
States,  whose  delegates  largely  changed  their 
attitude  from  hostility  to  friendship  in  their  rela- 
tion to  the  national  plan  of  government.  Only 
once  more  was  their  alarm  excited.  Two  days 
before  the  Constitution  was  signed  the  mode  for 
amending  the  Constitution  in  the  future  was 
established.  It  could  be  amended  by  a  vote  of 
three  fourths  of  the  States.  Again  the  small 
States  murmured,  fearing  hidden  dangers  to 
their  one  right  of  equality.  Their  strongest 
opponent,  Gouverneur  Morris,  thought  their 
apprehensions  should  be  quieted,  and  moved 
the  proviso  "  that  no  State,  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in 
the  Senate,"  which  was  at  once  adopted  without 
debate  or  opposition. 


VII 

THE  DEBATE   ON  THE  JUDICIAL 
ORGANIZATION 

Upon  the  question  of  establishing  a  national 
judiciary  the  progress  of  the  Convention  was 
less  difficult.  The  tenure  of  the  judges  during 
good  behavior  and  their  security  from  legisla- 
tive dictation  by  making  their  salaries  perma- 
nent were  agreed  to  without  opposition  when 
first  presented  in  the  Virginia  plan.  Later,  in 
view  of  changes  in  money  value  and  in  society 
itself,  increase  of  salary  was  allowed,  but  no 
reduction.  The  creation  of  inferior  national 
tribunals  was  left  ultimately  to  the  discretion 
of  Congress,  since  a  part  of  the  Convention 
were  disposed  to  make  the  Supreme  Court  only 
a  court  of  appeal  from  the  state  tribunals  in 
cases  where  it  should  appear  that  national  in- 
terests were  involved. 

The  establishment  of  inferior  courts  was  op- 
posed by  Butler  and  Martin,  who  believed  them 
unnecessary  and  calculated  to  stir  up  the  jeal- 
ousies of  state  tribunals,  with  whose  jurisdic- 
tion they  will  interfere.  It  was  advocated  by 
Gorham,  Randolph,  Gouverneur  Morris,  and 
Mason,   who   were   unwilling    to   trust   state 


DEBATE   ON  JUDICIAL  ORGANIZATION      93 

courts  with  the  administration  of  national  laws. 
The  general  and  local  policy  would  often  be 
at  variance.  Circumstances  not  now  foreseen 
might  render  the  power  absolutely  necessary. 
Sherman  was  willing  to  give  the  power,  but 
hoped  for  the  use  of  the  state  tribunals  when- 
ever possible.  The  power  to  create  them  was 
granted  to  Congress  without  a  formal  divi- 
sion. 

Touching  the  jurisdiction  of  the  courts,  Mr. 
Madison  proposed  that  it  "  extend  to  all  cases 
arising  under  the  national  laws,  and  to  such 
other  questions  as  may  involve  the  national 
peace  and  harmony,"  and  this  principle  was 
adopted  without  opposition.  The  extent  of  its 
jurisdiction  was  afterwards  more  carefully  de- 
fined, yet  remained  so  large  as  in  the  sequel  to 
cause  some  apprehension  to  the  States,  which 
made  it  later  the  subject  of  the  eleventh  amend- 
ment, adopted  in  1798.  This  amendment  re- 
moved from  their  possible  jurisdiction  all  suits 
brought  against  a  State  by  citizens  of  any  other 
State  or  of  a  foreign  country. 

James  Wilson  and  Gouverneur  Morris  ad- 
vocated the  appointment  of  judges  by  the  ex- 
ecutive alone;  John  Rutledge  and  Charles 
Cotesworth  Pinckney,  by  the  legislature ;  Mad- 
ison, Randolph,  Sherman,  and  Martin,  by  the 
Senate.  Gorham  recommended  their  appoint- 
ment by  the  executive,  with  the  advice  and 


94        EVOLUTION   OF  THE   CONSTITUTION 

consent  of  the  Senate,  which  had  been  long 
the  practice  in  Massachusetts  and  had  worked 
with  satisfaction.  Sherman  thought  the  judi- 
cial appointments  should  be  diffused  among 
the  States,  and  the  Senate  would  be  more 
likely  to  do  this  than  the  executive.  Mason 
said  if  the  judges  were  to  try  impeachments 
of  the  executive  they  ought  not  to  be  selected 
by  him.  Gouverneur  Morris  did  not  want  the 
Supreme  Court  to  try  impeachments.  Being 
at  the  seat  of  government  they  might  be  drawn 
into  intrigues  with  the  legislature  and  even  be 
previously  consulted  in  the  interest  of  the  pro- 
secution. This  provision  was  then  struck  out 
of  the  scheme. 

It  was  proposed  to  make  the  judges  remov- 
able by  the  executive  on  application  of  the  two 
Houses  of  Congress ;  but  it  had  only  the  sup- 
port of  Connecticut  and  was  rejected.  This 
removal,  it  was  decided,  could  only  be  made  by 
regular  process  of  impeachment,  as  in  the  case 
of  all  civil  officers  of  the  government. 

As  reported  by  the  Committee  of  Detail  the 
judicial  clause  did  not  give  jurisdiction  of  cases 
"  arising  under  this  Constitution,"  but  only  to 
those  "  arising  under  the  laws  of  the  United 
States,  and  treaties,"  etc.  The  learned  Dr. 
Johnson  moved  to  insert  the  former  clause. 
Mr.  Madison  objected  to  the  enlargement,  fear- 
ing  it  gave  a  general  right  of  expounding  the 


DEBATE  ON  JUDICIAL  ORGANIZATION      95 

Constitution  beyond  cases  of  a  judiciary  na- 
ture. But  the  Convention  accepted  it  without 
further  dissent,  considering  that  it  would  in 
application  be  limited  to  cases  "  of  a  judiciary 
nature." 


VIII 
ORGANIZATION  OF  THE  EXECUTIVE  POW^R 

It  will  be  remembered  that  the  Virginia  plan 
proposed  the  election  of  the  executive  author- 
ity, however  it  might  be  composed,  by  the  na- 
tional legislature.  When  that  question  came 
up  for  debate  on  June  2,  Mr.  Wilson  offered 
a  resolution  for  the  election  of  the  executive 
magistracy  by  electors,  who  were  to  be  chosen 
by  the  qualified  voters  of  districts  into  which 
the  States  should  be  divided ;  and  all  these  elec- 
tors so  chosen  should  assemble  and  make  the 
final  election,  being  themselves  ineligible  to 
that  office.  Only  Pennsylvania  and  Maryland 
supported  him ;  and  the  eight  other  States  sup- 
ported Mr.  Randolph's  proposition  for  the  elec- 
tion by  the  national  legislature,  though  it  was 
opposed  by  Mr.  Gerry.  All  were  then  doubt- 
ful whether  the  executive  should  be  single  or 
plural,  being  mindful,  on  the  one  hand,  of  the 
exercise  hitherto  of  executive  functions  by  a 
plural  committee  designated  by  the  Cengress ; 
and,  on  the  other,  of  the  aspect  of  monarchy, 
in  many  eyes,  if  a  single  person  should  be  in- 
vested with  the  authority. 

Dr.    Franklin    wished    that    the    executive 


ORGANIZATION   OF   EXECUTIVE   POWER     97 

shi&uld  have  n®  compensation,  but  his  expenses 
should  be  paid.  He  feared  te  combine  both 
ambition  and  avarice  —  love  of  power  and  love 
of  mcj^ney  —  in  the  same  person.  He  did  not 
act  from  a  desire  to  save  the  amount  of  the 
salary,  but  to  leave  no  personal  motive  in  seek- 
ing the  place  except  the  love  of  honor  and  the 
public  service;  and  he  recalled  the  great  ex- 
ample of  Washington  as  cemmander-in-chief. 
He  was  heard  with  great  respect,  but  without 
conviction,  and  with  a  feeling  that  his  proposal 
was  impractical. 

Mr.  Dickinson  and  Mr.  Bedford  desired  the 
executive  to  be  removable  by  the  national  legis- 
lature on  request  ©f  a  majority  of  the  state 
legislatures.  Mr.  Mason  held  this  to  be  a 
"violation  of  the  fundamental  principles  of 
g^od  government,"  in  which  Mr.  Madison  and 
Mr.  Wilson  concurred.  Delaware  alone  sup- 
ported it. 

Mr.  Wilson  moved  that  the  executive  consist 
of  a  single  person,  and  Mr.  Charles  Pinckney 
supported  him.  Great  shyness,  said  Mr.  Rut- 
ledge,  was  exhibited  by  gentlemen  in  taking 
position  on  that  question,  for  the  motion  was 
followed  by  a  significant  silence.  For  himself, 
he  preferred  one  man,  because  "  a  single  man 
would  feel  the  greatest  responsibility,  and  ad- 
minister the  public  affairs  best ;  "  but  he  would 
not  give  to  him  the  powers  of  peace  and  war. 


98       EVOLUTION   OF  THE  CONSTITUTION 

Mr.  Sherman  would  leave  the  number  of  the 
executive  to  the  legislature,  by  whom  they 
ought  to  be  appointed  from  time  to  time  as 
they  thought  best.  It  was  the  legislative  will 
that  was  to  be  executed,  and  the  executive 
should  be  accountable  to  it  alone.  Mr.  Gerry 
would  annex  a  council  to  the  executive,  and 
thought  a  legislative  election  would  cause  per- 
petual intrigue.  Mr.  Randolph  strongly  op- 
posed a  single  executive,  which  "  he  regarded 
as  the  foetus  of  a  monarchy."  Mr.  Madison, 
observing  the  apprehensions  of  monarchical 
authority  in  the  minds  of  members,  wisely  sug- 
gested that  before  decision  on  this  point  the 
Convention  should  define  the  powers  to  be  in- 
trusted to  the  executive.  So  they  proceeded 
to  this,  and  to  the  other  question  of  method 
of  appointing  the  executive ;  and  Mr.  Wilson 
still  desired  in  some  manner  an  election  by 
the  people,  as  was  the  case  of  governors  of  the 
States.  Mr.  Sherman  still  insisted  that  a  re- 
moval of  the  executive  from  dependence  on  the 
legislature  was  "  the  essence  of  tyranny."  Mr. 
Gerry  suggested  his  appointment  by  the  execu- 
tives of  the  States. 

Then  they  passed  to  the  question  of  the 
term  of  office,  for  which  Mr.  Wilson  proposed 
three  years,  with  reeligibility,  supported  by 
Mr.  Sherman,  who  was  against  rotation  "as 
throwing  out  of  office  the  men  best  qualified 


ORGANIZATION   OF  EXECUTIVE   POWER     99 

to  execute  its  duties."  Mr.  Mason  was  for 
seven  years  and  non-reeligibility,  fearing  "  in- 
trigue with  the  legislature  for  reappointment." 
Mr.  Bedford  was  for  three  years,  and  ineligi- 
bility after  nine  years. 

Seven  years  was  accepted  by  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  and  Vir- 
ginia, against  Connecticut,  North  Carolina, 
South  Carolina,  and  Georgia,  with  Massachu- 
setts divided ;  and  the  principle  of  ineligibility 
a  second  time  was  agreed  to  by  seven  States 
against  Georgia  and  Connecticut,  with  Penn- 
sylvania divided.  On  the  motion  of  North 
Carolina,  the  executive  was  made  removable 
by  impeachment  for  certain  causes. 

Debate  being  resumed  on  the  number  of  the 
executive,  Messrs.  Rutledge  and  Charles  Pinck- 
ney,  supported  by  Butler,  were  earnest  for  a 
single  executive,  because  he  would  be  more  im- 
partial, being  responsible  to  the  whole.  With 
three,  there  would  be  a  constant  struggle  for 
local  advantages.  Mr.  Butler  had  seen  its  evil 
effects  in  Holland.  But  Mr.  Randolph  was 
wholly  against  unity  in  the  executive,  which 
would  fail  to  win  that  general  confidence  which 
three  persons  from  different  parts  of  the  coun- 
try would  inspire.  It  was  the  semblance  of 
monarchy.  Mr.  Wilson  again  advocated  the 
unity  with  powerful  arguments,  and  denied  its 
alleged  unpopularity,  affirming  that  the  people 


loo     EVOLUTION  OF  THE   CONSTITUTION 

were  accustomed  to  it  in  the  head  of  their 
state  governments.  The  sturdy  Sherman  was 
inclined  to  agree  with  him,  but  wanted  to  asso- 
ciate a  council,  to  make  it  more  acceptable. 

A  single  executive  was  finally  agreed  to  by 
seven  States,  against  New  York,  Delaware,  and 
Maryland,  after  much  argument  and  citation 
from  other  countries  and  other  times. 

The  Virginia  clause  relating  to  a  council  of 
revision  was  taken  up  and  severely  criticised ; 
and  the  whole  question  of  a  revisionary  power 
over  legislative  enactments  —  of  an  absolute 
and  of  a  qualified  veto  —  was  searchingly  ex- 
amined. Convincing  objections  were  offered 
to  the  participation  of  the  judiciary  in  such 
revision,  which  was  desired  by  New  York,  Vir- 
ginia, and  Connecticut.  It  was  claimed  that 
the  judiciary  should  be  free  to  construe  the 
laws,  without  incurring  a  bias  by  intervention 
in  the  making  of  them.  Mr.  Gerry  and  Mr. 
King,  instead  of  a  council  of  revision,  would 
give  the  executive  a  negative  on  all  laws,  but 
subject  to  be  overruled  by  a  large  majority  of 
the  legislative  body.  Mr.  Wilson  believed  an 
absolute  negative  necessary  for  the  self-defence 
of  the  executive,  without  which  "  the  legislature 
can  at  any  moment  sink  it  into  non-existence." 
Mr.  Hamilton  was  of  the  same  opinion,  and,  for 
evidence  that  its  excessive  use  need  not  be 
feared,  remarked  that  the  power  had  not  been 


ORGANIZATION   OF   EXECUTIVE   POWER    loi 

used  in  England  since  the  Revolution.  Mr. 
Sherman  could  not  give  power  to  one  man  to 
override  the  will  of  the  whole.  Mr.  Butler  also 
resisted  the  absolute  negative.  Mr.  Bedford 
was  opposed  to  every  check  on  the  legislature. 
Mr.  Mason  appealed  to  fears  of  what  would 
practically  be  an  elective  monarchy,  and  thought 
it  would  be  sufficient  if  the  power  was  given  to 
"  suspend  offensive  laws  till  they  shall  be  coolly 
reviewed,  and  the  objections  overruled  by  a 
greater  majority  than  that  necessary  to  pass 
them  in  the  first  instance."  Dr.  Franklin  als® 
interposed  his  veice  against  the  absolute  nega- 
tive, and  feared  the  increase  of  executive  p«wer 
"  till  it  should  end  in  monarchy,"  and  favored 
a  qualified  negative.  At  the  close  of  the  com- 
mittee's debate  on  this  point  all  ten  States 
voted  against  the  absolute  vet^.  At  last,  and 
after  further  debate,  the  Convention  accepted 
Mr.  Gerry's  motion  for  an  executive  veto,  with 
power  in  two  thirds  of  the  legislature  to  over- 
rule it,  Connecticut  and  Maryland  voting  no ; 
and  it  so  passed  into  the  Constitution. 

Recurring  to  the  mode  of  electing  the  ex- 
ecutive, the  Convention  refused  to  adopt  Mr. 
Gerry's  motion  for  his  election  by  the  state 
executives,  leaving  it  unsupported  by  a  single 
State.  On  the  17th  of  July,  after  a  long  and 
exciting  debate  over  the  constitution  of  the 
Senate,  the  question  of  the  executive  was  again 


102        EVOLUTION  OF  THE   CONSTITUTION 

resumed  by  the  Convention.  It  was  now  agreed 
without  dissent  that  it  should  consist  of  a 
single  person.  His  election  by  the  national 
legislature  was,  however,  strenuously  resisted. 
Gouverneur  Morris  argued  that  in  that  case 
"  he  would  be  the  mere  creature  of  the  legisla- 
ture." His  election  would  be  "  the  work  of  in- 
trigue, of  cabal,  and  of  faction ;  it  will  be  like  the 
election  of  a  pope  by  a  conclave  of  cardinals ; 
real  merit  will  rarely  be  the  title  to  the  appoint- 
ment." The  citizens  should  elect  him.  Roger 
Sherman  thought  "the  sense  of  the  nation 
would  better  be  expressed  by  the  legislature 
than  by  the  people  at  large,  who  would  gener- 
ally vote  for  some  man  from  their  own  State." 
In  this  view  he  was  supported  by  Charles  Pinck- 
ney,  by  Mr.  Mason,  who  thought  it  as  wise  to 
"  refer  a  trial  of  colors  to  a  blind  man,"  as  this 
election  to  the  people ;  and  by  Dr.  Williamson, 
of  North  Carolina.  Mr.  Wilson  supported  Mr. 
Morris ;  but  they  were  for  the  time  defeated 
by  a  vote  of  nine  States  against  Pennsylvania. 
Mr.  Martin,  of  Maryland,  moved  his  election 
by  electors  appointed  by  the  state  legislatures, 
which  proposition  then  received  only  two  votes. 
The  election  by  the  national  legislature  was  still 
allowed  to  stand,  and  his  powers  were  next 
considered. 

The  executive  was  charged  with  the  exe- 
cution of  "  the  national  laws,"  and  authorized 


ORGANIZATION   OF  EXECUTIVE  POWER    103 

"to  appoint  to  offices  in  cases  not  otherwise 
provided  for  "  without  opposition. 

On  the  question  of  his  non-eligibility  for  a  sec- 
ond term  of  office,  as  proposed  in  the  Virginia 
scheme,  Gouverneur  Morris  said  "  it  tended 
to  destroy  the  great  motive  to  good  behavior, 
—  the  hope  of  being  rewarded  by  a  reappoint- 
ment. It  was  saying  to  him,  *  Make  hay  while 
the  sun  shines/"  This  provision  was  then 
struck  out  by  a  vote  of  six  States  against 
Delaware,  Virginia,  and  North  and  South 
Carolina. 

On  the  question  of  a  term  of  seven  years, 
Mr.  Broom,  of  Delaware,  in  view  of  the  fact 
that  the  executive  would  now  be  reeligible, 
moved  to  reduce  the  term.  Dr.  McClurg,  on 
the  contrary,  to  rescue  him  from  a  constant  and 
servile  dependence  on  the  legislature  electing 
him,  moved  a  term  "during  good  behavior." 
Gouverneur  Morris  gladly  seconded  him,  say- 
ing, "  This  was  the  way  to  get  a  good  govern- 
ment," and  Mr.  Broom  concurred.  Roger 
Sherman  opposed  it :  "  If  he  behaves  well,  he 
will  be  continued  ;  if  otherwise,  displaced ;  this 
was  equivalent  to  a  term  during  good  behav- 
ior;" and  he  was  supported  by  Mr.  Mason. 
Mr.  Madison  said,  "  Experience  has  shown  a 
tendency  in  our  government  to  throw  all  power 
into  the  legislative  vortex.  The  executives  of 
the  States  are  little  more  than  ciphers,  the  legis- 


104      EVOLUTION  OF  THE  CONSTITUTION 

latures  omnipotent."  The  executive  should 
not  be  dependent  on  the  legislature. 

Dr.  McClurg's  motion  was  lost  by  the  votes 
of  Massachusetts,  Connecticut,  Maryland, 
North  Carolina,  South  Carolina,  Georgia  (6), 
against  New  Jersey,  Pennsylvania,  Delaware, 
Virginia  (4).  "But  the  affirmative  vote,"  says 
Mr.  Madison,"  was  given  from  motives  of  expe- 
diency rather  than  conviction,  in  order  to  force 
some  mode  of  rendering  him  independent  of 
the  legislature." 

On  the  19th  of  July  the  question  again  re- 
curred on  the  reeligibility  of  the  chief  magis- 
trate, and  mingled  with  it  the  mode  of  his  elec- 
tion. Gouverneur  Morris  made  a  vigorous  and 
impressive  argument  for  greater  independence 
in  the  executive.  Recalling  the  maxim  that 
republican  government  is  not  adapted  to  a 
large  extent  of  country,  because  the  executive 
magistracy  cannot  reach  the  extreme  parts  of 
it,  he  said,  "  Our  country  is  an  extensive  one. 
We  must  then  either  renounce  the  blessings  of 
the  Union  or  provide  an  executive  with  suffi- 
cient vigor  to  pervade  every  part  of  it."  *'  The 
legislature  will  continually  seek  to  aggrandize 
and  perpetuate  themselves."  "The  executive 
magistrate  should  be  the  guardian  of  the  peo- 
pie,  even  of  the  lower  classes,  against  legisla- 
tive tyranny,  —  should  be  the  great  protector 
of  the  mass  of  the  people."    He  saw  "  no  alter- 


ORGANIZATION   OF  EXECUTIVE  POWER     105 

native  for  making  the  executive  independent  of 
the  legislature  but  either  to  give  him  his  office 
for  life  or  make  him  eligible  by  the  people." 
Mr.  Randolph  was  moved  to  acknowledge  that 
if  he  was  reeligible  by  the  legislature  he  would 
be  no  check  on  them  :  he  would  court  a  reap- 
pointment. His  revisionary  power  over  laws 
would  be  of  no  avail.  He  would  therefore 
make  him  ineligible  to  a  second  term  instead 
of  providing  another  mode  of  election. 

Mr.  King  was  much  struck  by  Mr.  Sher- 
man's observation,  that  "  he  who  has  proved 
himself  most  fit  for  an  office  ought  not  to  be 
excluded  by  the  Constitution  from  holding 
it ; "  and  he  preferred  another  plan  of  election. 
Mr.  Paterson  agreed  with  Mr.  King,  and  pro- 
posed an  election  by  electors  to  be  chosen  by 
the  States.  Mr.  Wilson  was  glad  to  see  the 
idea  of  a  mediate  or  immediate  popular  election 
gaining  ground.  Mr.  Madison  thought  there 
was  equal  or  greater  reason  "  why  the  executive 
should  be  independent  of  the  legislature  than 
why  the  judiciary  should  be."  Mr.  Gerry  would 
have  him  chosen  by  electors  selected  by  the 
state  executives.  "  The  people  of  the  States 
will  then  choose  the  first  branch,  the  legislatures 
of  the  States  the  second  branch  of  the  national 
legislature,  and  the  executives  of  the  States  the 
national  executive.  This  would  form  a  strong 
attachment  in  the  States  to  the  national  system." 


io6     EVOLUTION   OF  THE   CONSTITUTION 

On  the  motion  to  reconsider  the  question 
it  was  carried  unanimously.  Mr.  Ellsworth 
then  moved  for  electors  to  be  appointed  by 
the  state  legislatures.  The  clause  providing 
for  electors  was  carried  by  Connecticut,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  and 
Virginia  (6),  against  North  Carolina,  South 
Carolina,  and  Georgia  (3),  with  Massachusetts 
divided.  The  clause  for  their  appointment 
by  the  state  legislatures  received  eight  votes, 
against  Virginia  and  South  Carolina.  The 
effort  to  make  the  executive  ineligible  to  a 
second  term  now  failed,  only  North  Carolina 
and  South  Carolina  supporting  it.  All  this 
was  followed  by  a  change  of  front  on  the 
question  of  length  of  term,  which  had  been 
fixed  at  seven  years.  Connecticut,  South  Caro- 
lina, and  Georgia  still  supported  it,  and  North 
Carolina  and  Massachusetts  were  divided ;  but 
the  rest  were  against  it.  Mr.  Ellsworth  pro- 
posed six  years,  and  was  supported  by  Dr. 
Williamson.  It  was  adopted  by  all  other  States 
against  only  Delaware. 

It  was  first  proposed  by  Mr.  Gerry  to  allot 
from  one  to  three  electors  to  the  States,  ac- 
cording to  their  importance.  But  Dr.  William- 
son, of  North  Carolina,  thought  that  in  future 
elections  the  electors  should  be  according  to 
the  number  of  state  representatives  in  the 
first  branch  of  the  national  legislature.    Mr. 


ORGANIZATION   OF   EXECUTIVE   POWER    107 

Gerry's  ratio  was  adopted,  six  States  to  four, 
only  to  be  afterwards  changed.  And  they  pro- 
ceeded to  consider  the  liability  of  the  execu- 
tive to  impeachment. 

It  was  contended  on  the  one  side  that  he 
ought  to  be  exempt,  because  if  he  did  wrong 
he  would  have  coadjutors  who  could  be  pun- 
ished, and  if  reelected  it  would  be  proof  of  his 
innocence.  It  would  render  him  dependent  on 
the  impeaching  authority.  On  the  other  side  it 
was  claimed  nobody  could  be  permitted  to  be 
beyond  the  law  and  above  justice.  The  princi- 
pal, as  well  as  coadjutors,  should  be  punished. 
Dr.  Franklin  thought  the  clause  was  favorable 
to  the  executive,  because,  without  it,  here  as  in 
the  Old  World,  if  not  legally  removable,  resort 
might  be  had  to  assassination,  which  would 
shut  off  all  opportunity  to  prove  his  innocence, 
which  he  might  do  in  case  of  impeachment. 
Gouverneur  Morris  thought  the  causes  of  im- 
peachment ought  to  be  enumerated  and  de- 
fined. Mr.  Madison  said  the  executive  might 
lose  his  capacity,  be  guilty  of  negligence  or 
perfidy,  and  the  community  should  have  a  de- 
fence against  these  chances.  His  "  incapacity 
or  corruption  might  be  fatal  to  the  republic." 
Mr.  King  feared  "  an  extreme  caution  in  favor 
of  liberty  might  enervate  the  government  they 
were  forming."  "Under  no  circumstances  ought 
he  to  be  impeachable  by  the  legislature,  as 


io8      EVOLUTION  OF  THE   CONSTITUTION 

this  would  be  destructive  of  his  independence." 
Gouverneur  Morris  admitted  he  ought  to  be 
impeachable  foi^  treachery,  bribery  (Charles  II. 
had  been  bribed  by  Louis  XIV.),  corruption, 
and  incapacity.  But  it  should  be  by  a  mode 
not  making  him  dependent  on  the  legislature. 
And  the  liability  to  impeachment  was  carried 
in  the  affirmative  by  eight  States,  against  Massa- 
chusetts and  South  Carolina. 

It  was  then  unanimously  agreed  that  he 
should  have  a  fixed  compensation,  to  be  paid 
out  of  the  national  treasury,  New  Jersey  alone 
voting  against  the  latter  clause  ;  and  with 
unanimity  that  no  elector  should  be  eligible 
to  the  chief  magistracy,  nor  be  a  member  of 
the  national  legislature,  nor  an  officer  of  the 
national  government.  It  was  further  agreed 
the  electors  should  be  paid  out  of  the  national 
treasury  for  their  services. 

Another  effort  was  made  by  some  of  the 
very  ablest  men  in  the  Convention  to  associate 
with  the  chief  magistrate  the  judges,  as  a  coun- 
cil for  the  revision  of  laws.  Mr.  Madison  re- 
newed the  expression  of  his  fears  that  "the 
legislature  would  still  be  an  overmatch  "  for 
the  two  other  departments  of  the  government, 
as  there  was  "  a  powerful  tendency  in  the  legis- 
lature to  absorb  all  power  into  its  vortex.  This 
was  the  real  source  of  danger  to  the  American 
Constitution."     Mr.  Gorham,  on  the  contrary, 


ORGANIZATION   OF  EXECUTIVE  POWER    109 

said,  "Judges  were  not  presumed  to  possess 
any  peculiar  knowledge  of  the  mere  policy  of 
public  measures."  He  thought  it  only  neces- 
sary, at  most,  "to  authorize  the  executive  to 
call  on  the  judges  for  their  opinions."  Mr. 
Gerry  and  Mr.  Strong  agreed  with  him,  and 
Mr.  Martin  joined  in  this  opposition.  After 
able  argument  and  much  contrariety  of  opinion 
between  States  and  in  their  delegations,  the 
motion  failed  by  four  States  voting  no,  three 
aye,  two  divided,  and  one  absent. 

Upon  reconsideration  of  the  resolution  pro- 
viding for  electors,  there  was  again  a  protracted 
debate,  which  seemed  more  to  disintegrate 
than  consolidate  opinions.  Dr.  Williamson 
would  go  back  to  the  first  proposition  for  elec- 
tion by  the  national  legislature,  with  ineligibil- 
ity for  a  second  term.  "  It  was  pretty  certain 
that  we  should  at  some  time  or  other  have  a 
king ;  but  he  would  omit  no  precaution  to  post- 
pone the  event  as  long  as  possible."  Mr.  Gerry 
proposed  a  refining  process,  that  state  legisla- 
tures should  vote  for  the  national  executive  by 
ballot,  in  proportion  to  the  assigned  electoral 
votes;  failing  of  election  by  a  majority,  the 
first  branch  of  Congress  to  choose  two  out  of 
the  four  major  candidates  voted  for;  and  from 
these  two  the  Senate  to  choose  one.  Mr.  Wil- 
son thought  to  solve  their  perplexities  by  elect- 
ing him  for  six  years,  the  elective  body  being 


no     EVOLUTION  OF  THE   CONSTITUTION 

(say)  fifteen  persons  chosen  out  of  the  national 
legislature  by  lot,  and  to  retire  immediately 
for  the  election  to  avoid  intrigue,  and  not  to 
separate  without  an  election:  but  the  best 
mode  was  a  resort  to  the  people.  No  progress 
was  made  to  a  concentration  of  opinion.  Mr. 
Mason  laughed  at  an  election  of  President  by 
"  a  lottery."  These  and  other  propositions  were 
voted  down.  Mr.  Madison  observed,  "  There 
were  objections  against  every  mode  that  had 
been,  or  perhaps  could  be,  proposed,"  and  re- 
viewed the  various  possible  methods  of  election, 
with  the  conclusion  that  the  only  safe  alter- 
natives were  an  election  by  the  people,  or  by 
electors  chosen  by  the  people.  Mr.  Mason 
and  Mr.  Butler  admitted  the  danger  of  foreign 
influence,  and  of  cabals,  in  the  case  of  election 
by  the  national  legislature,  and  the  latter  was 
against  reeligibility  in  any  case. 

Gouverneur  Morris,  on  the  contrary,  was 
very  positively  against  rotation  in  office.  "  It 
formed  a  political  school  in  which  we  were 
always  governed  by  the  scholars,  and  not  by 
the  masters."  Then  it  was  suggested  that 
every  voter  should  vote  for  plural  candidates, 
not  more  than  one  of  whom  should  be  a  citi- 
zen of  his  own  State,  in  which  case  the  second 
choice  of  each  might  be  the  best  choice  of  all. 
Dickinson  thought  the  election  by  the  people 
was  "the  best  and  purest  source."     Mason 


ORGANIZATION  OF  EXECUTIVE  POWER  in 

thought  it  best  to  return  to  the  original  plan, 
and  despairing  of  more  unanimity  on  any  new 
proposition,  the  Convention  reinstated  it,  and 
it  went  in  that  form  to  the  Committee  on  Detail. 
This  committee  reported  accordingly  that 
the  executive  should  have  the  style  "  The  Pre- 
sident of  the  United  States,"  and  should  be 
elected  by  the  legislature  by  ballot.  (The  title 
of  President  was  then  borne  by  Franklin  as 
chief  magistrate  of  Pennsylvania.)  Attention 
was  called  to  the  necessity  of  inserting  the  word 
"  joint "  before  ballot,  or  the  two  Houses  might 
negative  each  other's  choice;  and  it  was  inserted. 
The  motion  to  take  the  vote  by  States  was 
defeated ;  the  motion  requiring  a  majority  of 
personal  votes  was  adopted,  ten  States  to  one. 
Then  the  old  question  of  Presidential  electors 
was  again  raised  and  argued,  and  only  failed 
by  an  equality  of  votes,  four  to  four,  two  di- 
vided, and  one  absent.  The  question  was  sub- 
sequently referred  to  a  committee  of  eleven, 
who  reported  a  plan  which  tended  to  concen- 
trate opinions.  It  fixed  his  term  at  four  years, 
with  reeligibility,  and  provided  for  electors  to 
be  selected  in  each  State  as  its  legislature 
should  direct,  and  equal  in  number  to  its  total 
representation  in  the  two  Houses  of  Congress. 
They  were  to  vote  in  their  respective  States, 
and  not  in  a  general  college  as  at  one  time 
proposed. 


112      EVOLUTION   OF  THE   CONSTITUTION 

Thus  they  were  removed  from  foreign  influ- 
ence, from  the  danger  of  cabals  and  intrigues  ; 
and  this  mode  left  the  President  independent 
of  the  legislature,  while  the  term  was  so  short 
as  to  prevent  usurpation  of  power  for  personal 
objects,  and  went  far  to  obviate  objections  be- 
fore made  to  his  reelection.  There  were  still 
criticisms,  but  this  method  finally  prevailed 
and  was  inscribed  in  the  Constitution.  Upon 
no  other  subject  did  the  opinion  of  the  Con- 
vention so  often  sway  to  and  fro  as  upon  this. 
But  the  experience  of  a  century  has,  in  the 
main,  justified  the  system,  saving,  perhaps,  the 
duration  of  the  term  fixed  at  four  instead  of 
six  years. 

On  the  point  of  reeligibility  there  has  never 
been  any  answer  to  the  old  question.  Why 
should  not  the  people  be  allowed  to  reelect  a 
good  officer  satisfactory  to  them  in  the  admin- 
istration of  his  office  ?  And  the  term  of  four 
years  was  fixed  because  of  this  reeligibility. 
On  the  other  hand,  there  has  never  been  a 
satisfactory  answer  to  the  other  old  question, 
How  can  the  selfish  desire  for  a  reelection 
be  prevented  from  influencing  the  public  con- 
duct of  an  officer  if  he  is  reeligible  ?  And 
there  seems  to  be  no  answer  which  involves 
less  than  a  change  in  the  nature  of  man.  The 
fathers  limited  as  far  a's  possible  the  selfish 
motive  by  confining  it  to  actions  which  would 


ORGANIZATION   OF  EXECUTIVE   POWER    113 

benefit  the  majority  of  men,  and  which  should 
be  favorable  to  their  interests  as  the  great 
constituency  which  could  give  or  refuse  the 
reelection.  At  the  same  time,  his  conscience 
was  subjected  to  his  ambition  in  respect  to 
actions  which  should  excite  popular  clamor  or 
applause. 


IX 


OTHER   SPECIAL  PROVISIONS   OF  THE 
CONSTITUTION 

Until  the  Committee  of  Detail  was  appointed, 
the  Convention  had  sought  to  confine  their  dis- 
cussions to  the  outline  of  organization  and  to 
the  broad  principles  of  a  government  for  the 
Union.  The  first  battle,  and  that  of  the  highest 
importance,  had  been  fought  for  position.  The 
fundamental  question  had  been,  Should  the 
government  be  founded  upon  the  States,  or 
upon  the  people  of  the  United  States  ?  Should 
it  be  a  compact  —  a  league  —  between  sover- 
eign States,  as  was  the  Confederacy,  or  should 
it  be  a  single  national  government,  extending 
behind  the  chartered  States,  and  reposing  upon 
the  American  people?  It  had  been  decided 
in  favor  of  the  united  people;  and  that  they, 
not  the  States,  should  constitute  the  new  gov- 
ernment, "  to  consist  of  a  supreme  legislative, 
executive,  and  judiciary." 

The  second  vital  struggle  had  been  upon 
the  two  questions.  How  shall  the  local  inter- 
ests of  the  small  States  find  protection  in  gen- 
eral legislation  against  the  interests  of  the 
great  States,  represented  as  the  latter  would 


OTHER  SPECIAL  PROVISIONS  115 

be  by  an  immense  numerical  majority  ?  How 
shall  the  greater  wealth  and  population  of  the 
large  States  be  secured  against  the  practical 
control  of  the  minority,  if  proportional  repre- 
sentation is  disallowed?  These  questions  had 
been  settled  by  giving  the  small  States  an 
equal  representation  in  the  second  branch, 
and  to  the  large  States  their  proportional 
number  of  the  first  branch. 

It  had  been  further  decided  that  both  Houses 
should  have  the  power  to  originate  legislation. 
But  as  the  power  to  tax  and  to  regulate  com- 
merce had  been  the  great  argument  of  the 
more  populous  States  in  favor  of  proportional 
representation  in  both  branches,  it  had  been 
agreed  by  the  smaller  States,  "  that  all  bills 
for  raising  or  appropriating  money,  and  for 
fixing  the  salaries  of  the  ofiicers  of  the  govern- 
ment, shall  originate  in  the  first  branch,  and 
shall  not  be  altered  or  amended  by  the  second 
branch ;  and  that  no  money  shall  be  drawn  from 
the  public  treasury  but  in  pursuance  of  appro- 
priations to  be  originated  by  the  first  branch." 

It  had  been  further  agreed,  touching  the  gen- 
eral powers  of  Congress,  that  they  should  have 
all  the  legislative  rights  before  vested  in  the 
Confederacy;  "and,  moreover,  to  legislate  in 
all  cases  for  the  general  interests  of  the  Union, 
and  also  in  those  to  which  the  States  are  sepa- 
rately incompetent,  or  in  which  the  harmony 


ii6     EVOLUTION   OF  THE   CONSTITUTION 

of  the  United  States  may  be  interrupted  by 
the  exercise  of  individual  legislation." 

The  legislative  acts  of  the  United  States, 
made  by  virtue  and  in  pursuance  of  the  Ar- 
ticles of  Union,  and  all  its  treaties,  it  was 
declared,  "  shall  be  the  supreme  law  of  the 
respective  States,  as  far  as  those  acts  or  treaties 
shall  relate  to  the  said  States,  or  their  citizens 
or  inhabitants ;  "  "  anything  in  the  respective 
laws  of  the  individual  States  to  the  contrary 
notwithstanding." 

All  these,  together  with  other  resolutions 
adopted,  amounting  to  twenty-three  in  number, 
and  representing  all  the  solid  results  of  the 
debates  of  the  Convention  since  the  25th  of 
May,  were,  on  the  26th  day  of  July,  referred 
to  a  "  committee  of  detail,"  which  had  been 
selected  by  ballot,  and  was  composed  of  Messrs. 
Rutledge,  Randolph,  Gorham,  Ellsworth,  and 
Wilson,  two  from  the  Southern  and  three  from 
the  Northern  States,  and  all  of  them  possessed 
of  notable  strength  of  intellect.  The  original 
propositions  of  Mr.  Paterson,  and  of  Mr. 
Charles  Pinckney  (of  which  latter  no  authentic 
copy  remains)  were  referred  to  the  same  com- 
mittee. 

Their  commission  imposed  on  them  the  most 
important  and  laborious  duty  of  translating 
these  principles  into  detailed  measures  suit- 
able for  a  constitution;  and  the  Convention 


OTHER  SPECIAL  PROVISIONS  117 

suspended  its  sessions  until  August  6th  to 
leave  the  committee  free  for  that  work,  which 
was  to  develop  the  vital  germ  of  the  republic. 

In  the  report  of  this  committee,  made  on  the 
6th  of  August,  the  Constitution  opened  with 
the  recital,  "  We,  the  people  of  the  States  of 
New  Hampshire,"  etc.,  naming  each  of  the  thir- 
teen States,  "  do  ordain,  declare,  and  establish 
the  following  Constitution  for  the  government 
of  ourselves  and  our  posterity."  The  Com- 
mittee of  Revision  afterwards  struck  out  the 
names  of  all  the  States  and  established  the 
clause,  "  We,  the  people  of  the  United  States, 
do  ordain,"  etc.  The  name  given  to  the  gov- 
ernment was  "  The  United  States  of  America." 
The  two  legislative  branches  were  now  called 
the  House  of  Representatives  and  the  Senate, 
and  together  were  styled  a  "  Congress."  Each 
House  was  to  choose  its  own  presiding  officer. 
Power  was  given  to  Congress  to  establish  uni- 
form qualifications  of  its  members  in  regard 
to  property.  The  representatives  and  senators 
were  disqualified  from  holding  any  office  under 
the  United  States  during  the  time  for  which 
they  shall  respectively  be  elected,  and  senators 
also  for  one  year  afterwards.  Their  compen- 
sation was  to  be  paid  by  the  State  in  which 
they  were  chosen.  The  first  House  alone  had 
the  power  of  impeachment ;  the  trial  body  to 
be  the  Supreme  Court. 


ii8      EVOLUTION   OF   THE   CONSTITUTION 

The  enumeration  of  legislative  powers  was 
very  short,  and  on  some  of  these  limitations 
were  imposed.  No  navigation  act  could  be 
passed  without  the  assent  of  two  thirds  of  the 
members  present  in  each  House.  No  tax  or 
duty  could  be  laid  on  exports  nor  on  the  mi- 
gration or  importation  of  such  persons  as  any 
State  should  permit  to  enter. 

To  the  Senate  was  given  the  power  to  make 
treaties,  and  to  appoint  ambassadors  and  judges 
of  the  Supreme  Court.  They  were  also  em- 
powered—  through  elaborate  provisions  —  to 
try  and  decide  controversies  between  States 
which  involved  their  respective  jurisdictions  or 
territory ;  and,  further,  to  determine  conflicting 
land-grants  in  certain  cases.  But  this  judicial 
function  was  later  transferred  to  the  Supreme 
Court. 

To  the  States  certain  prohibitions  were  ap- 
plied, including  that  against  entering  into  any 
agreement  or  compact  with  another  State,  or 
emitting  bills  of  credit,  or  making  anything 
but  specie  a  legal  tender.  In  case  of  the  ad- 
mission of  new  States  a  vote  of  two  thirds  of 
the  members  voting  in  each  House  was  re- 
quired. These  and  other  details  opened  a  wide 
field  for  debate. 

The  Convention,  upon  hearing  the  report 
of  the  committee,  adjourned  to  consider  it  be- 
fore engaging  in  discussion.   This  draft  of  the 


OTHER  SPECIAL  PROVISIONS  119 

Constitution  provided  for  annual  meetings  of 
Congress  on  the  first  Monday  of  December, 
for  which  the  Connecticut  members  were  stren- 
uous advocates.  Mr.  King  thought  it  would 
not  be  necessary  to  meet  every  year.  "A  great 
vice  in  our  system  was  that  of  legislating  too 
much."  Mr.  Madison  and  Mr.  Mason  opposed 
fixing  the  time  by  the  Constitution :  it  should 
be  regulated  by  law.  On  Mr.  Randolph's  mo- 
tion the  words  were  then  added,  "  unless  a  dif- 
ferent day  shall  be  appointed  by  law ; "  and  on 
Mr.  Rutledge's  motion  the  Congress  was  ex- 
pressly required  to  meet  once  in  every  year. 

A  question  was  raised  on  the  clause  which 
made  the  electors  of  the  most  numerous  branch 
of  the  state  legislature  also  qualified  electors 
of  the  national  House.  Gouverneur  Morris, 
Mr.  Fitzsimons,  and  Mr.  Mercer  were  in  fa- 
vor of  restraining  the  suffrage  to  freeholders. 
Messrs.  Ellsworth,  Wilson,  Mason,  Rutledge, 
and  Franklin  were  against  it.  "  Give  the  votes 
to  people  who  have  no  property,"  said  Mr.  Mor- 
ris, "  and  they  will  sell  them  to  the  rich  who 
will  be  able  to  buy  them."  Mr.  Madison  said, 
"  Viewing  the  subject  on  its  merits  alone,  the 
freeholders  of  the  country  would  be  the  safest 
depositories  of  public  liberty."  Dr.  Franklin 
thought  it "  of  great  consequence  that  we  should 
not  depress  the  virtue  and  public  spirit  of  our 
common  people"  by  ignoring  their  rights  of 


120      EVOLUTION  OF  THE   CONSTITUTION 

suffrage  under  the  general  government.  The 
clause  was  sustained  by  seven  States  against 
Delaware,  with  Maryland  divided,  and  Georgia 
absent. 

A  representative  was  required  to  have  been 
"a  citizen  in  the  United  States  for  at  least 
three  years  before  his  election."  Mr.  Mason 
"did  not  choose  to  let  foreigners  and  adven- 
turers make  laws  for  us  and  govern  us."  The 
time  was  too  short  to  give  that  local  know- 
ledge which  a  representative  should  have,  and 
he  moved  te  make  it  seven  years.  All  the 
States  agreed  to  this  except  Connecticut.  The 
prior  citizenship  for  senators  had  been  fixed 
at  four  years.  A  term  of  fourteen  years'  prior 
citizenship  was  proposed  by  Gouverneur  Mor- 
ris. Mr.  Pinckney  said,  in  view  of  the  treaty- 
making  power,  "  there  is  peculiar  danger  and 
impropriety  in  opening  the  door  to  those  who 
have  foreign  attachments.  The  Athenians  made 
it  death  for  any  stranger  to  intrude  his  voice 
into  their  legislative  proceedings."  Were  it  not 
for  the  Revolutionary  services  of  some  who 
were  alien-born,  Mr.  Mason  would  restrict  eligi- 
bility to  the  Senate  to  natives  only.  Mr.  Butler 
remarked  on  the  danger  of  introducing  "  ideas 
of  government  so  distinct  from  ours."  Mr.  Wil- 
son and  Dr.  Franklin  were  against  illiberality 
on  this  question.  Gouverneur  Morris,  with  his 
usual  frank  audacity,  declared,  "As  to  those 


OTHER  SPECIAL  PROVISIONS  121 

philosophical  gentlemen,  those  citizens  of  the 
world,  as  they  called  themselves,  he  owned  he 
did  not  wish  to  see  any  of  them  in  our  pub- 
lic councils.  He  would  not  trust  them.  The 
men  who  can  shake  off  their  attachments  to 
their  own  country  can  never  love  any  other. 
These  attachments  are  the  wholesome  preju- 
dices which  uphold  all  governments."  At  a 
later  discussion,  Mr.  Mason  expressed  his  fears 
that  immigrants  attached  to  Great  Britain  might 
work  their  way  into  our  councils,  and  be  per- 
nicious in  action  upon  commercial  regulations. 
"  The  great  houses  of  British  merchants  would 
spare  no  pains  to  insinuate  the  instruments 
of  their  views  into  the  government."  Various 
terms  were  proposed  and  voted  down,  until 
nine  years  was  offered  and  adopted  for  the  prior 
citizenship  of  senators. 

Mr.  Madison  objected  to  the  ratio  of  one 
representative  for  forty  thousand  inhabitants 
as,  in  the  future,  rendering  that  House  a  too 
numerous  body.  Mr.  Gorham  replied,  "  It  is 
not  to  be  supposed  that  the  government  will 
last  so  long  as  to  produce  this  effect.  Can  it 
be  supposed  that  this  vast  country,  including 
the  western  territory,  will,  one  hundred  and 
fifty  years  hence,  remain  one  nation  ? "  And 
no  prophetic  voice  answered  him,  that  one 
hundred  years  after  that  Convention  should 
adjourn  the  representatives  of  sixty  millions  of 


122      EVOLUTION   OF  THE   CONSTITUTION 

people,  extending  from  the  highest  lake  in  the 
north  to  the  mouth  of  the  Mississippi,  from 
the  ocean  on  the  east  to  the  ocean  on  the  west, 
from  a  doubled  and  redoubled  extent  of  terri- 
tory, with  the  terrible  curse  of  slavery  abolished 
from  it  all,  should  assemble  around  the  build- 
ing in  which  his  hopeless  inquiry  was  made, 
and  celebrate  in  joy,  in  happiness,  in  prosperity, 
and  in  the  hope  of  future  centuries  of  union, 
the  centennial  anniversary  of  their  great  act ! 

Mr.  Ellsworth  attached  his  hopes  to  future 
alterations  which  might  be  made  in  the  Con- 
stitution ;  and  on  motion  of  Mr.  Madison  and 
Mr.  Sherman  the  ratio  was  made  "  not  exceed- 
ing forty  thousand,"  with  the  proviso  that  each 
State  should  have  at  least  one  representative. 
On  the  last  day  of  the  Convention  General 
Washington  for  the  first  time  addressed  the 
Convention  on  any  point  of  debate.  It  was  to 
ask  their  unanimous  support  of  an  amendment, 
offered  by  Mr.  Gorham,  to  substitute  thirty  for 
forty  thousand.  He  requested  it  in  order  to 
conciliate  those  who  feared  to  intrust  the  legis- 
lative powers  to  so  small  a  body.  The  change 
was  unanimously  made. 

Messrs.  Pinckney  and  Rutledge  did  not  like 
the  clause  which  empowered  Congress  to  over- 
rule the  States  in  their  regulation  of  the  times, 
places,  and  manner  of  holding  elections  for 
senators  and  representatives.  Messrs.  Gorham, 


OTHER  SPECIAL  PROVISIONS  123 

Madison,  and  Gouverneur  Morris  sustained  it 
as  a  necessary  power  to  prevent  abuses  of  their 
discretion  by  the  States,  false  returns,  defal- 
cations of  duty,  improper  voting  districts,  etc. 
Mr.  King  interjected  the  remark,  "Although 
the  scheme  of  erecting  the  general  government 
on  the  authority  of  the  state  legislatures  has 
been  fatal  to  the  Federal  establishment,  it  would 
seem  as  if  many  gentlemen  still  foster  the  dan- 
gerous idea."  The  Convention  on  vote  retained 
the  power  of  both  original  and  revisionary  con- 
trol over  the  States,  except  as  to  the  place  of 
choosing  senators. 

The  same  gentlemen  proposed  a  fixed  pro- 
perty qualification  for  the  President,  for  judges, 
and  for  congressmen.  Mr.  Ellsworth  and  Dr. 
Franklin  resisted  it,  both  on  principle  and 
for  expediency ;  and,  on  voting,  the  "  no "  was 
so  general  that  the  vote  by  States  was  not 
asked  for. 

The  question  of  national  control  of  the  dis- 
cipline of  the  state  militia  was  referred  to  a 
"grand  committee"  of  one  from  each  State. 
Mr.  Dickinson  and  others  thought  "  the  States 
never  would  nor  ought  to  give  up  all  author- 
ity over  the  militia."  Mr.  Butler  and  others 
thought  it  should  be  submitted  to  the  au- 
thority which  was  charged  with  the  general 
defence:  the  States  would  never  secure  uni- 
formity of  discipline  or  effectiveness  of  organ- 


124     EVOLUTION  OF  THE   CONSTITUTION 

ization.  Mr.  Gerry  thought  this  the  last  point 
to  be  surrendered.  "  If  it  be  agreed  to  by  the 
Convention,  the  plan  will  have  as  black  a  mark 
as  was  set  on  Cain."  This  question,  like  many 
others,  was  settled  on  middle  ground  by  giving 
to  the  United  States  the  power  to  organize, 
arm,  and  discipline  the  militia,  and  to  govern 
them  when  employed  in  the  national  service, 
leaving  to  each  State  the  appointment  of  officers 
and  the  training  of  the  force. 

Gouverneur  Morris  also  submitted  several 
propositions  organizing  a  Council  of  State  to 
assist  the  President,  consisting  of  the  Chief 
Justice,  a  Secretary  of  Domestic  Affairs,  a  Sec- 
retary of  Commerce  and  Finance,  a  Secretary 
of  Foreign  Affairs,  a  Secretary  of  War,  a  Sec- 
retary of  the  Marine,  and  a  Secretary  of  State, 
and  outlining  the  duties  of  each.  These  went 
to  the  same  committee,  and  were  favorably 
reported,  adding  the  Speaker  of  the  House  to 
the  Council.  But  it  was  not  approved  by  the 
Convention,  which  preferred  individual  respon- 
sibility, with  only  the  aid  of  chiefs  of  executive 
departments. 

Mr.  Mason  moved  to  insert  a  power  "to 
enact  sumptuary  laws,"  with  a  view  to  the  im- 
provement of  manners.  It  was  briefly  opposed 
by  Ellsworth,  Morris,  and  Gerry,  and  defeated, 
eight  States  to  three. 

The  clause  respecting  treason  was  thought 


OTHER  SPECIAL  PROVISIONS  125 

by  Mr.  Madison  to  be  too  narrow ;  that  greater 
discretion  should  be  given  to  Congress  to  define 
it.  Gouverneur  Morris  was  for  giving  to  the 
Union  "an  exclusive  right  to  declare  what 
should  be  treason.  In  case  of  a  contest  be- 
tween the  United  States  and  a  particular  State, 
the  people  of  the  latter  must,  under  the  clause  as 
it  stood,  be  traitors  to  the  one  or  the  other  au- 
thority." Dr.  Johnson  contended  that  treason 
"  could  not  be  both  against  the  United  States 
and  individual  States,  being  an  offence  against 
the  sovereignty  which  can  be  but  one  in  the 
same  community."  The  Convention  decided 
without  dissent  to  strike  out  of  the  clause  what 
related  to  the  States,  leaving  the  definition  to 
apply  to  the  United  States  only.  Upon  recon- 
sideration and  further  debate,  the  Convention 
came  back  to  the  same  conclusion  upon  a 
divided  vote,  and  leaving  the  point  unsettled 
whether  there  could  be  a  double  treason,  or 
that  treason  against  a  State  was  necessarily 
treason  against  the  United  States,  and  to  be 
prosecuted  as  such. 

In  the  article  enumerating  the  powers  of 
Congress,  authority  was  given  "  to  make  war." 
Mr.  Pinckney  thought  its  proceedings  would 
be  too  slow,  its  numbers  too  great ;  and  that 
the  Senate  alone,  being  charged  with  foreign 
affairs  as  it  was,  would  be  the  better  repository 
of  this  power.   Mr.  Butler  would  vest  the  power 


126     EVOLUTION  OF  THE   CONSTITUTION 

in  the  executive,  who  "will  not  make  war 
but  when  the  nation  will  support  it."  Messrs. 
Madison  and  Gerry  moved  to  substitute  the 
words  "  declare  war,"  for  "  make  war,"  so  as  to 
leave  the  power  in  the  executive  to  repel  at- 
tacks ;  and  this  was  agreed  to. 

Mr.  Madison,  ever  full  of  forethought,  and 
anxious  that  future  events  should  not  confront 
a  defective  Constitution,  presented  an  enumera- 
tion of  twenty-one  additional  powers  in  Con- 
gress, including  the  following :  — 

"  To  establish  an  university." 

"  To  encourage  by  premiums  and  provisions 
the  advancement  of  useful  knowledge  and  dis- 


coveries." 


"  To  establish  seminaries  for  the  promotion 
of  literature  and  the  arts  and  sciences,"  and 
institutions  and  rewards  for  promotion  of  agri- 
culture, commerce,  trades,  and  manufactures. 

"  To  grant  charters  of  incorporation." 

All  these  were  referred  to  the  Committee  of 
Detail,  but  were  not  reported. 

Afterwards  Messrs.  Madison,  Pinckney,  and 
Wilson  brought  the  question  of  the  power  to 
establish  a  university  before  the  Convention  by 
a  motion  to  add  this  to  the  list  of  congressional 
powers.  Gouverneur  Morris  replied,  "  It  is  not 
necessary.  The  exclusive  power  at  the  seat  of 
government  will  reach  the  object."  Upon  the 
vote,  Pennsylvania,  Virginia,  and  the  two  Caro- 


OTHER  SPECIAL  PROVISIONS  127 

linas  were  forgiving  the  express  authority,  with 
Connecticut  divided.  But  the  other  six  States 
were  against  it. 

THE   ELEMENT   OF   SLAVERY. 

It  is  not  within  the  purpose  of  these  histori- 
cal notes  to  review  that  portion  of  the  debates 
which  relates  to  questions  no  longer  of  prac- 
tical concern.  The  institution  of  slavery  in 
many  of  the  States  interposed  great  obstacles, 
alike  to  the  agreement  of  the  Convention  upon 
a  Constitution,  and  to  its  ratification  by  the 
States.  It  is  known  to  all  that  it  continued  to 
be  a  source  of  discord  also  in  the  Union  until, 
seventy-five  years  later,  it  nearly  caused  the 
dissolution  of  the  Union  itself  which  had  been 
created  with  so  much  patriotic  toil  and  devo- 
tion. Its  disappearance  from  our  continent  is 
therefore  a  new  element  of  happiness  for  us 
which  was  denied  to  our  constitutional  fathers ; 
and  justifies  more  faithful  hopes  of  the  per- 
petuity of  the  Union  which  they  founded. 

INCORPORATIONS  AND  INTERNAL  IMPROVEMENTS. 

Dr.  Franklin,  mindful  of  the  need  of  con- 
necting and  improving  communications  by 
water  routes,  moved  to  add  the  power  "  to  pro- 
vide for  cutting  canals  where  deemed  neces- 
sary." Mr.  Sherman  objected,  that  the  expense 
would  fall  on  the  United  States,  the  benefit 


128      EVOLUTION  OF  THE  CONSTITUTION 

accrue  to  the  localities.  Then  Mr.  Madison 
proposed  to  enlarge  it  into  a  power  "  to  grant 
charters  of  incorporation,  where  the  interest  of 
the  United  States  might  require,  and  the  legis- 
lative provisions  of  individual  States  may  be 
incompetent."  He  desired  to  facilitate  com- 
munication between  the  States.  "  The  politi- 
cal obstacles  being  removed,  a  removal  of  the 
natural  ones  as  far  as  possible  ought  to  follow." 
Mr.  Randolph  seconded  him. 

Mr.  King  thought  the  power  unnecessary. 
Mr.  Wilson  thought  it  "  necessary  to  prevent  a 
State  from  obstructing  the  general  welfare." 
Mr.  King  replied  that  the  States  would  be 
divided  into  parties  by  the  proposition.  In 
Philadelphia  and  New  York  they  would  refer 
it  to  the  establishment  of  a  bank,  about  which 
the  two  cities  were  in  contention.  Elsewhere 
it  would  be  referred  to  mercantile  monopolies. 

Mr.  Wilson  spoke  of  the  importance  of  ca- 
nals to  reach  the  Western  settlements.  "  As 
to  mercantile  monopolies,  they  are  already  in- 
cluded in  the  power  to  regulate  trade."  On 
this  last  point  Mr.  Mason  differed  from  Mr. 
Wilson,  and  was  for  limiting  the  power  to  the 
single  case  of  canals.  The  question  was  first 
taken  upon  the  authority  for  canals ;  this  being 
refused  by  all  the  States  except  Pennsylvania, 
Virginia,  and  Georgia,  the  whole  clause  was 
dropped. 


OTHER  SPECIAL  PROVISIONS  129 

And  with  this  short  debate,  the  entire  ques- 
tion of  schools  and  universities,  of  canals,  high- 
ways, internal  improvements,  with  countless 
millions  of  money  involved,  and  of  all  char- 
tered corporations,  was  left  to  the  future  in- 
terpretation of  the  other  powers  granted  to 
Congress.  The  necessities  of  the  country, 
developed  by  its  growth  and  by  the  discovery 
of  steam-power  applied  to  locomotion,  have 
forced  an  enlarged  construction  of  the  Con- 
stitution in  the  line  indicated  by  the  remark 
of  Mr.  Wilson,  and  rejected  by  Mr.  Mason. 
These  two  statesmen  unwittingly  became  the 
founders  of  two  rival  schools  of  Constitutional 
interpretation,  whose  disputes  have  had  no  end, 
though  that  of  Mr.  Wilson  has  prevailed  in  the 
legislation  of  Congress. 

IMPEACHMENT. 

It  was  first  decided  by  the  Convention  to 
give  the  Supreme  Court  the  trial  of  all  im- 
peachments of  public  officers.  But  after  giv- 
ing to  the  executive  the  power  of  appointment 
of  the  judges,  it  was  argued  that  his  influ- 
ence over  that  court  would  be  too  great,  and 
that  the  chances  of  intrigue  must  be  avoided  ; 
and  the  trial  of  impeachments  was  transferred 
to  the  Senate. 

Here  again  it  was  objected,  that  as  the  Vice- 
President,  presiding   over   the  Senate,  would 


I30      EVOLUTION   OF  THE  CONSTITUTION 

succeed  upon  conviction  of  the  President,  he 
was  directly  interested  in  the  result.  To  obvi- 
ate this  serious  obstacle  it  was  provided  that 
on  such  trial  he  should  leave  the  chair,  and  the 
Chief  Justice  should  preside.  In  order  further 
to  remove  objection  to  the  trial  of  the  execu- 
tive by  a  mere  political  body,  a  judicial  char- 
acter was  given  to  them  for  this  emergency, 
by  requiring  that  in  this  capacity  the  senators 
should  be  under  special  oath. 

This  settlement  was  made  only  after  many 
expressions  of  conflicting  opinions,  and  much 
uncertain  debate,  during  which  the  Conven- 
tion seemed  to  be  feeling  its  way  to  a  wise 
conclusion. 

NATIONAL   CONTROL   OVER   STATES    IN   THE 
ELECTION    OF   MEMBERS    OF   CONGRESS. 

In  framing  the  details  of  the  Constitution 
the  committee  reported  this  clause:  "The  times 
and  places  and  manner  of  holding  the  election 
of  members  of  each  House  shall  be  prescribed 
by  the  legislature  of  each  State ;  but  their  pro- 
visions concerning  them  may  at  any  time  be 
altered  by  the  legislature  of  the  United  States." 

Upon  its  consideration  in  Convention,  Messrs. 
Pinckney  and  Rutledge  moved  to  strike  out  the 
last  clause,  which  gave  revisionary  control  to 
Congress. 

Mr.  Gorham  said :  "  It  would  be  as  improper 


OTHER  SPECIAL  PROVISIONS  131 

to  take  this  power  from  the  national  legislature 
as  to  restrain  the  British  Parliament  from  regu- 
lating the  circumstances  of  elections,  leaving 
this  business  to  the  counties  themselves." 

Mr.  Madison  added  stronger  expressions  : 
"The  policy  of  referring  the  appointment  of 
the  House  of  Representatives  to  the  people, 
and  not  to  the  legislatures  of  the  States,  sup- 
poses that  the  result  will  be  somewhat  influ- 
enced by  the  mode.  This  view  of  the  ques- 
tion seems  to  decide  that  the  legislatures  of 
the  States  ought  not  to  have  the  uncontrolled 
right  of  regulating  the  times,  places,  and  man- 
ner of  holding  elections.  These  were  words 
of  great  latitude.  It  was  impossible  to  foresee 
all  the  abuses  that  might  be  made  of  the  dis- 
cretionary power.  Whether  the  electors  should 
vote  by  ballot,  or  viva  voce ;  should  assemble 
at  this  place  or  that  place ;  should  be  divided 
into  districts,  or  all  meet  at  one  place ;  should 
all  vote  for  all  the  representatives,  or  all  in  a 
district  vote  for  a  member  allotted  to  the  dis- 
trict ;  these  and  many  other  points  would  de- 
pend on  the  legislatures,  and  might  materially 
affect  the  appointments.  Whenever  the  legis- 
latures had  a  favorite  measure  to  carry  they 
would  take  care  so  to  mould  their  regulations 
as  to  favor  the  candidates  they  wished  to  suc- 
ceed. ...  It  seemed  as  improper  in  principle, 
though  it  might  be  less  inconvenient  in  prac- 


132      EVOLUTION   OF  THE  CONSTITUTION 

tice,  to  give  the  state  legislatures  this  great 
authority  over  the  election  of  the  represent- 
atives of  the  people  in  the  general  legislature 
as  it  would  be  to  give  the  latter  a  like  power 
over  the  election  of  representatives  in  the  state 
legislature." 

Mr.  King  supported  Mr.  Madison's  views, 
calling  attention  again  to  the  fact  that  they 
were  not  building  this  government  on  the  basis 
of  the  state  legislatures.  He  said :  "  If  this 
power  be  not  given  to  the  national  legislature, 
their  right  of  judging  of  the  returns  of  their 
members  may  be  frustrated."  To  this  Gou- 
verneur  Morris  added  that  "  the  States  might 
make  false  returns,  and  then  make  no  pro- 
visions for  new  elections."  Mr.  Sherman  did 
not  know  that  it  might  be  best  to  retain  the 
clause,  though  he  had  confidence  in  the  state 
legislatures. 

The  motion  to  strike  out  then  failed,  without 
a  division,  and  it  was  not  again  contested. 

In  this,  as  in  many  other  cases,  is  observed 
the  steady  development  of  the  fundamental  idea 
of  national  independence  of  all  state  action. 
Mr.  Madison,  above  all  others,  kept  it  con- 
stantly in  view.  The  process  was  like  the  steady 
emergence  from  the  world  of  chaos  of  a  world 
of  order ;  of  a  central  sun  from  a  confused  as- 
semblage of  stars,  on  which  it  would  shed  light, 
but  from  which  it  could  receive  none.  The  new 


OTHER  SteCIAL  PROVISIONS  133 

central  State  to  be  evolved  must  control  the 
elements  and  operations  necessary  to  its  own 
existence  and  efficiency. 

COMPENSATION   OF   MEMBERS   OF   CONGRESS. 

The  report  of  the  Committee  of  Detail  pro- 
vided for  the  payment  of  both  representatives 
and  senators  by  the  States  in  which  they  were 
chosen.  The  original  plan  of  Virginia  simply 
proposed  their  payment  by  "  liberal  stipends," 
without  designating  the  source  of  payment. 
On  motion  of  Mr.  Pierce,  their  wages  were 
made  payable  out  of  the  national  treasury ;  and 
on  motion  of  Dr.  Frankhn  the  word  "liberal" 
was  struck  out. 

When  the  debate  again  occurred  on  the 
Virginia  resolutions,  Mr.  Ellsworth  moved 
their  payment  by  the  States  respectively.  He 
observed  that,  owing  to  different  styles  of  liv- 
ing and  the  different  scales  of  compensation  in 
the  various  States,  what  would  be  deemed  only 
reasonable  compensation  in  one  State  would 
be  very  unpopular  in  another.  Dr.  Williamson 
concurred  with  him. 

Mr.  Gorham  was  opposed  to  leaving  the 
matter  to  the  state  legislatures,  "who  were 
always  paring  down  salaries  in  such  a  manner 
as  to  keep  out  of  office  men  most  capable  of 
executing  the  functions  of  them."  He  would 
not  fix  the  grade  of  pay  in  the  Constitution. 


134      EVOLUTION   OF  THE   CONSTITUTION 

"  Let  the  national  legislature  provide  for  their 
own  wages  from  time  to  time,  as  the  state  legis- 
latures do."  He  had  not  seen  and  did  not 
apprehend  an  abuse  of  this  power.  Mr.  Ran- 
dolph did  not  think  it  honorable  in  the  Con- 
vention to  sacrifice  right  to  popular  prejudice. 
Payment  by  the  State  would  create  a  depend- 
ence which  would  vitiate  the  whole  system. 
Mr.  King  was  of  the  same  opinion,  as  was  also 
Mr.  Wilson.  But  Mr.  Sherman  adhered  to 
payment  by  the  States. 

Mr.  Hamilton  stoutly  opposed  "  making  the 
national  council  dependent  on  the  legislative 
rewards  of  the  States.  Those  who  pay  are  the 
masters  of  those  who  are  paid."  Payments  by 
the  States  would  be  unequal,  and  there  would 
be  greater  distance  travelled  by  some  than  by 
others.  Mr.  Madison  would  not  leave  men 
coming  "  from  beyond  the  mountains  to  the 
precarious  and  parsimonious  support  of  their 
constituents."  But  he  disliked  to  give  the  legis- 
lature the  right  to  fix  their  own  salaries,  as 
being  too  much  interested. 

On  Mr.  Ellsworth^s  motion  to  strike  out 
"  national  treasury,"  the  vote  stood  ayes  four, 
noes  five,  with  New  York  and  Georgia  divided. 
The  question  was  embarrassed  by  fears  of  in- 
serting a  fixed  sum  in  the  Constitution,  on  the 
one  hand,  and  so  run  the  double  risk  of  its  inva- 
riability in  the  future,  and  of  its  being  obnox- 


OTHER  SPECIAL  PROVISIONS  135 

lous  to  the  States ;  and,  on  the  other,  of  giving 
the  members  an  authority  to  fix  their  own  pay. 
The  propositions  which  went  to  the  Committee 
of  Detail,  therefore,  were  to  pay  representatives 
out  of  the  public  treasury,  and  that  senators 
should  be  paid,  without  indicating  by  whom  ; 
and  the  report  of  that  committee  was  that  both 
branches  should  be  paid  by  the  States  from 
which  they  received  their  appointments. 

Upon  recurring  to  the  question  on  this  report, 
Mr.  Ellsworth  frankly  stated  "  that  in  reflecting 
on  this  subject  he  had  been  satisfied  that  too 
much  dependence  on  the  States  would  be  pro- 
duced by  this  mode  of  payment,"  and  he  moved 
to  strike  it  out,  and  to  substitute  the  United 
States  treasury.  Mr.  Butler  thought  that  sen- 
ators would  be  so  long  out  of  their  States  that 
they  would  lose  sight  of  their  constituents, 
unless  dependent  on  them  for  support.  "  On 
the  other  side,"  Mr.  Gerry  said,  "the  state 
legislatures  may  turn  out  the  senators  by  re- 
ducing their  salaries;  such  things  have  been 
practised." 

Mr.  Sherman  was  not  afraid  that  the  legis- 
lature would  make  their  own  wages  too  high, 
but  too  low;  so  that  men  ever  so  fit  could 
not  serve  unless  they  were  at  the  same  time  rich. 
Mr.  Carroll  was  surprised  at  the  report  in  favor 
of  such  complete  dependence  of  both  Houses. 
"  The  States  can  now  say.  If  you  do  not  comply 


136      EVOLUTION   OF  THE   CONSTITUTION 

with  our  wishes  we  will  starve  you  ;  if  you  do  we 
will  reward  you.  The  new  government  in  this 
form  was  nothing  more  than  a  second  edition 
of  the  Confederate  Congress,  in  two  volumes 
instead  of  one,  and  perhaps  with  very  few 
amendments." 

Mr.  Dickinson  also  desired  Congress  to  be 
"  independent  of  the  prejudices,  passions,  and 
improper  views  of  the  state  legislatures,"  but 
disliked  leaving  the  pay  to  be  regulated  by  Con- 
gress itself.  There  were  also  objections  against 
taking  a  permanent  standard  as  wheat,  which 
had  been  suggested  on  a  former  occasion.  He 
proposed  a  revision  by  legislative  act  every 
twelve  years,  "  settling  the  quantum  of  their 
wages."  Mr.  Martin,  always  for  reserved  con- 
trol by  the  separate  States,  thought  senators, 
as  state  representatives,  ought  to  be  paid  by 
the  States.  Mr.  Carroll,  his  colleague,  denied 
that  the  senators  were  designed  to  be  advo- 
cates of  state  interests;  on  the  contrary,  they 
were  to  represent  and  manage  the  affairs  of 
the  whole. 

The  vote  was  then  taken,  and  all  the  States  ex- 
cept  Massachusetts  and  South  Carolina  adopted 
the  provision  for  paying  the  members  of  Con- 
gress out  of  the  national  treasury.  An  attempt 
to  fix  the  sum  per  diem  failed,  and  then  the  words 
"  to  be  ascertained  by  law  "  were  added  without 
a  division. 


OTHER   SPECIAL  PROVISIONS  137 

THE    RIGHT   TO   TAX   EXPORTS 

was  warmly  advocated  on  the  one  side,  and  as 
warmly  resisted  on  the  other.  It  was  claimed 
on  the  one  hand  that  this  power  might  be  a 
useful  aid  in  negotiating  commercial  treaties, 
and  such  a  tax,  if  imposed  on  certain  articles 
which  must  be  used  abroad,  would  be  paid  by 
foreigners ;  that  it  might  yet  be  necessary  for 
revenue ;  that  it  might  be  required  to  encourage 
the  manufacture  of  raw  materials  at  home ;  and 
to  prohibit  it  in  all  cases  would  be  a  dangerous 
denial  of  power  to  Congress  in  future  contin- 
gencies. On  the  other  hand,  the  "  staple  States  " 
feared  that  its  imposition  on  their  leading  arti- 
cles of  export  might  be  accomplished  by  the 
votes  of  Northern  States,  and  that  the  former 
might  thus  be  made  to  pay  an  undue  share 
of  the  taxes.  The  general  government  might 
through  it  oppress  particular  States.  Mr.  Mad- 
ison especially  insisted  that  it  was  a  proper  tax, 
that  its  use  should  not  be  allowed  to  the  sepa- 
rate maritime  States  as  a  power  to  oppress  their 
interior  neighbors ;  and  that  the  national  legis- 
lature was  the  proper  depository  of  this  power. 
He  thought  it  would  be  wise  to  employ  it  espe- 
cially in  taxing  exports  of  articles  like  tobacco, 
which  had  no  competition  in  foreign  markets, 
—  for  in  that  case  it  would  really  be  paid  by 
foreigners.    In  the  end,  the  fear  of  such  use 


138     EVOLUTION  OF  THE   CONSTITUTION 

of  the  power  as  would  prejudice  the  interests  of 
particular  States  prevailed,  and  the  power  was 
prohibited  alike  to  the  States  and  to  the  United 
States. 

THE   POWER  TO   REGULATE   FOREIGN   AND 
INTERSTATE   COMMERCE. 

The  powers  to  levy  taxes,  duties,  imposts, 
and  excises,  and  to  regulate  commerce,  were 
conferred  upon  the  national  government  with- 
out giving  rise  to  any  serious  difficulty,  be- 
cause the  necessity  of  it  was  the  strong  motive 
to  the  new  organization  of  government. 

The  question  of  taxation  first  arose  in  con- 
nection with  the  ratio  of  representation ;  and 
it  was  resolved  by  five  votes  against  three, 
and  one  State  divided,  that  until  a  census  was 
taken,  direct  taxation  should  be  imposed  on 
the  States  according  to  representation  in  the 
first  branch.  When  the  Committee  of  Detail 
made  their  report  on  August  6th,  the  clauses 
giving  Congress  the  power  to  tax,  and  to  regu- 
late commerce,  appear  in  the  identical  language 
in  which  they  are  now  found  in  our  Consti- 
tution, except  that  the  clause  "  but  all  duties, 
imposts,  and  excises  shall  be  uniform  through- 
out the  United  States  "  was  afterwards  added. 

In  the  discussion  on  representation,  Mr.  King 
asked, "  What  is  the  precise  meaning  of  direct 
taxation  ? "   No  one  replied  to  his  inquiry.  A 


OTHER  SPECIAL  PROVISIONS  139 

proposition  to  obtain  by  requisition  from  each 
State  its  quota  of  direct  taxes  failed,  eight  States 
to  one,  and  Virginia  divided. 

In  passing  upon  the  words  "duties"  and 
"  imposts,"  Mr.  Martin  asked  what  was  meant 
by  these  words  ?  Mr.  Wilson  replied  that  "  im- 
posts" was  appropriated  to  commerce,  while 
"duties"  applied  to  a  variety  of  objects,  as 
stamp  duties,  etc.  The  only  vote  against  the 
adoption  of  that  taxing  clause  was  Mr.  Gerry's. 

On  the  question  of  laying  embargoes,  Mr. 
Madison  moved  to  prohibit  that  power  to  the 
States.  Mr.  Sherman  thought  they  might  need 
to  exercise  it  "  to  prevent  suffering  and  injury 
to  the  poor;"  and  Mr.  Mason  thought  the 
amendment  dangerous.  Gouverneur  Morris 
considered  the  provision  unnecessary,  "the 
power  of  regulating  trade  between  State  and 
State  already  vested  in  the  general  legislature 
being  sufficient."  Mr.  Madison  then  moved  an 
absolute  prohibition  against  the  laying  of  du- 
ties by  States  on  imports,  in  order  to  exclude  the 
possibility  of  their  getting  the  consent  of  Con- 
gress to  an  act  which  would  tax  the  imports  of 
their  neighbors  passing  through  their  markets. 
Mr.  Mason  objected  that  "particular  States 
might  wish  to  encourage,  by  import  duties,  cer- 
tain manufactures  for  which  they  enjoyed  nat- 
ural advantages,  as  Virginia  the  manufacture 
of  hemp,"  etc.     Mr.  Madison  replied  that  "  the 


I40     EVOLUTION   OF  THE   CONSTITUTION 

encouragement  of  manufactures  in  that  mode 
requires  duties  not  only  on  imports  directly 
from  foreign  countries,  but  from  other  States 
of  the  Union,  which  would  revive  all  the  mis- 
chiefs experienced  from  the  want  of  a  general 
government  over  commerce." 

The  power  to  regulate  commerce  was  first 
given  unanimously,  and  without  any  objection 
or  query  being  raised  upon  its  right  or  expedi- 
ency. But  on  the  29th  of  August,  Mr.  Charles 
Pinckney,  with  special  reference  to  the  report  of 
a  committee  which  recommended  the  rejection 
of  the  clause  requiring  a  two-thirds  majority  to 
pass  a  navigation  act,  moved  a  proposition  that 
"  no  act  of  the  legislature  for  the  purpose  of 
regulating  the  commerce  of  the  United  States 
with  foreign  powers,  or  among  the  several  States 
shall  be  passed  without  the  assent  of  two  thirds 
of  the  members  of  each  House."  He  classified 
the  States  according  to  their  conflicting  inter- 
ests, to  show  the  danger  to  these  interests  if  a 
mere  majority  should  be  empowered  to  regulate 
commerce  and  navigation.  The  power  was 
a  pure  concession,  he  said,  on  the  part  of  the 
Southern  States,  which  did  not  at  present  need 
the  protection  of  the  Northern  States.  Mr. 
Martin  supported  him.  Charles  Cotesworth 
Pinckney  disagreed.  Mr.  Clymer  said  "  the 
Northern  and  Middle  States  would  be  ruined 
if  not  enabled  to  defend  themselves  against  for- 


OTHER  SPECIAL  PROVISIONS  141 

eign  regulations."  Messrs.  Sherman,  Spaight, 
Gouverneur  Morris,  Rutledge,  and  others  op- 
posed the  demand  for  a  two-thirds  majority.  It 
was  rejected  by  seven  States  against  Maryland, 
Virginia,  North  Carolina,  and  Georgia ;  and  the 
clause  requiring  two  thirds  to  pass  a  naviga- 
tion act  was  struck  out,  leaving  this  on  the  same 
plane  with  other  legislation.  The  debate  recog- 
nized the  importance  of  a  commercial  marine,  as 
fostering  seamen,  and  as  auxiliary  to  the  navy. 
Mr.  Mason,  as  late  as  September  15,  made  an 
effort  to  require  a  two-thirds  majority  to  pass 
a  navigation  act  at  any  time  before  1808,  ap- 
parently associating  it  with  the  slave  trade ;  but 
only  Maryland,  Virginia,  and  Georgia  supported 
the  proposal. 

This  power  having  ever  since  remained  un- 
disputed, the  real  significance  of  the  provision 
has  been  forgotten.  The  necessity  of  its  exist- 
ence in  a  central  authority,  which  should  bind 
all  the  States,  was  then  strongly  appreciated 
and  universally  understood.  As  colonies,  they 
had  always  assented  to  the  imposition  of  duties 
by  Great  Britain  on  foreign  goods  imported 
among  them  so  far  as  was  needed  to  regulate 
their  commercial  intercourse  with  foreign  coun- 
tries. Dr.  Franklin,  as  colonial  delegate  in 
England,  had  expressly  answered  a  parliamen- 
tary committee  in  1766  that  the  colonies  did 
not  object  to  the  British  exercise  over  them  of 


142      EVOLUTION   OF   THE   CONSTITUTION 

this  power  for  the  purpose  of  regulating  com- 
merce, but  denied  it  and  all  other  taxation  when 
imposed  with  the  object  of  obtaining  a  revenue. 
His  answer  was,  "  I  never  heard  any  objection 
to  the  right  of  laying  duties  to  regulate  com- 
merce ;  but  a  right  to  lay  internal  taxes  was 
never  thought  to  lie  in  Parliament."  Lord  Chat- 
ham, a  few  days  afterwards,  in  a  speech  upon 
the  right  of  taxing  America,  admitted  "  there 
IS  a  plain  distinction  between  taxes  levied  for 
the  purpose  of  raising  a  revenue  and  duties 
imposed  for  the  regulation  of  trade."  In  1778 
the  government  introduced  a  bill  in  Parliament 
for  the  purpose  of  conciliating  the  colonies,  then 
in  open  revolution,  in  the  preamble  of  which 
they  renounced  all  taxation  of  America,  "  except 
only  such  duties  as  may  be  expedient  to  impose 
for  the  regulation  of  commerce." 

The  experience  of  mutual  injustice  among 
the  colonies  in  their  imposition  of  duties  to  raise 
a  revenue,  and  to  regulate  their  rival  trade  with 
foreign  countries,  had  led  to  a  widespread  regret 
that  there  was  no  common  authority  to  regu- 
late this  commerce  on  terms  of  equality  for  all, 
as  had  before  been  done  by  act  of  Parliament. 
Each  State  was  powerless  to  protect  its  own 
industries  except  by  imposition  of  duties  against 
importations  from  other  States  as  well  as  directly 
from  abroad.  In  August  of  the  year  prior  to 
the  meeting  of  this  Convention  a  grand  com- 


OTHER  SPECIAL  PROVISIONS  143 

mittee  of  the  Federal  Congress  had  reported 
an  article  to  be  added  to  the  Confederate  sys- 
tem, which  gave  to  the  "  United  States  in  Con- 
gress assembled  the  sole  and  exclusive  power 
of  regulating  the  trade  of  the  States,  as  well 
with  foreign  nations  as  with  each  other,  and 
of  laying  such  prohibitions  and  such  imposts 
and  duties  upon  imports  and  exports  as  may 
be  necessary  for  the  purpose ; "  with  a  proviso, 
however,  that  the  amounts  so  collected  by  the 
United  States  should  be  paid  to  the  use  of 
the  State  in  which  they  should  be  payable ; 
and  that  citizens  should  not  be  required  to  pay 
more  than  foreign  subjects. 

It  thus  appears  that  the  statesmen  of  that 
period — and  some  of  the  members  of  that  com- 
mittee were  now  members  of  this  Convention 
—  were  thoroughly  familiar  with  the  system  of 
regulating  trade  with  foreign  countries  by  the 
imposition  of  duties,  and  even  went  so  far  as 
to  authorize  "  prohibitions  "  of  such  trade,  or 
parts  of  it.  In  a  debate  in  Convention  (August 
1 3)  upon  another  subject,  Mr.  Madison  said : 
"In  many  acts,  particularly  in  the  regulation  of 
trade,  the  object  would  be  twofold.  The  raising 
of  revenue  would  be  one  of  them.  How  could 
it  be  determined  which  was  the  primary  or  pre- 
dominant one,  or  whether  it  was  necessary  that 
revenue  should  be  the  sole  object,  to  the  ex- 
clusion even  of  other  incidental  effects  ?  When 


144      EVOLUTION   OF  THE   CONSTITUTION 

the  contest  was  first  opened  with  Great  Brit- 
ain their  power  to  regulate  trade  was  admitted, 
their  power  to  raise  revenue  rejected."  Mr. 
Mason  had  expressed  his  fears  of  foreign  influ- 
ence in  our  commercial  regulations,  that  "  the 
great  houses  of  British  merchants  would  in- 
sinuate the  instruments  of  their  views  into  our 
government." 

In  the  debate  on  the  ratification  of  the  na- 
tional Constitution  in  the  Massachusetts  Con- 
vention, Mr.  Thomas  Dawes  urged  its  approval 
because  of  the  power  it  gave  to  the  national 
government  over  commerce  and  navigation. 
He  said:  "  For  want  of  general  laws  of  prohibi- 
tion through  the  Union,  our  coasting  trade, 
our  whole  commerce,  is  going  to  ruin."  After 
reciting  the  free  access  to  our  ports  of  British 
bottoms,  and  their  great  earnings  from  Ameri- 
can freights,  he  added :  "  Our  sister  States  are 
willing  that  these  benefits  should  be  secured 
to  us  by  national  laws,  but  we  are  slaves  to 
Europe.  We  have  no  uniformity  in  duties,  im- 
posts, excises,  or  prohibitions.  Congress  has 
no  authority  to  withhold  advantages  from  for- 
eigners in  order  to  obtain  reciprocal  advantages 
from  them.  Our  manufacturers  have  received 
no  encouragement  by  national  duties  on  for- 
eign manufacture,  and  they  never  can  by  any 
authority  in  the  Confederation.  .  .  .  The  citi- 
zens of  the  United  States  within  the  last  three 


UNIVERSITY 
OTHER  SPECIAL  PROVISIONS  145 

years  have  contracted  debts  with  the  subjects 
of  Great  Britain  to  the  amount  of  near  six  mil- 
lions of  dollars.  If  we  wish  to  encourage  our 
own  manufactures,  to  preserve  our  own  com- 
merce, to  raise  the  value  of  our  own  lands,  we 
must  give  Congress  the  power  in  question." 

In  other  States  the  object  of  this  provision 
was  equally  well  understood,  as  shown  by  the 
use  made  of  it  in  the  efforts  to  defeat  the  rati- 
fication of  the  Constitution  in  the  States  fur- 
nishing exports,  but  having  no  shipping  and 
no  manufactures. 

In  the  light  of  all  these  debates  we  see 
clearly  what  was  meant  by  the  power  "  to  regu- 
late commerce  with  foreign  nations  and  among 
the  several  States."  In  pursuance  of  this  au- 
thority, after  prescribing  the  oaths  of  office  to 
be  taken,  the  first  act  of  Congress  under  this 
Constitution  (chapter  ii.  Stats,  at  Large)  im- 
poses duties  on  foreign  imports  for  the  "  two- 
fold purpose  "  to  which  Mr.  Madison  alluded 
in  the  Convention,  —  "for  the  support  of  the 
government,  for  the  discharge  of  the  debts  of 
the  United  States,  and  the  encouragement  and 
protection  of  manufactures,"  as  recited  in  its  pre- 
amble. All  the  great  commercial  countries  of 
Europe  at  that  time  exercised  the  same  power, 
and  for  the  same  twofold  purpose.  Wars  were 
undertaken  to  secure  exclusive  colonial  mar- 
kets for  their  wares,  and  some  of  these  govern- 


146     EVOLUTION   OF   THE   CONSTITUTION 

ments  have  continued  that  exclusive  policy  to 
this  day.  Without  a  like  power  this  govern- 
ment would  have  been  defenceless  in  negotia- 
tions of  commercial  treaties,  and  would  have 
remained  especially  the  commercial  victim  of 
that  government  from  whose  dominion  it  had 
just  escaped. 

Mr.  Madison  introduced  the  bill  for  the  ex- 
ercise of  this  power  two  days  after  the  organi- 
zation of  the  First  Congress  (April,  1789,  and 
before  President  Washington  was  inaugurated), 
proposing  also  a  discriminating  duty  on  ton- 
nage to  protect  American  shipping.  He  said 
in  debate  that  the  "  interests  of  States  which 
were  ripe  for  manufactures  ought  to  have  atten- 
tion, as  the  power  of  protecting  and  cherish- 
ing them  has  by  the  present  Constitution  been 
taken  from  the  States,  and  its  exercise  thrown 
into  other  hands." 

BILLS   OF   CREDIT   AND    LEGAL   TENDER. 

The  Committee  of  Detail,  under  the  author- 
ity giving  to  the  new  legislature  all  the  powers 
of  the  Confederate  Congress,  reported  the  clause 
"  to  borrow  money  and  emit  bills  on  the  credit 
of  the  United  States." 

Gouverneur  Morris,  seconded  by  Mr.  Butler, 
moved  to  strike  out  the  authority  "to  emit 
tills  "  of  credit,  holding  it  unnecessary  if  the 
public  credit  was  good,  and  useless  if  it  was 


OTHER  SPECIAL  PROVISIONS  147 

bad.  Mr.  Madison  inquired  if  it  would  not 
suffice  to  prohibit  their  being  made  a  tender. 
Promissory  notes  in  that  shape  might  in  some 
emergencies  be  best.  Mr.  Morris  answered 
that  without  the  clause  the  promissory  notes 
of  a  responsible  minister  would  be  good.  If 
paper  emissions  were  not  prohibited,  the  money 
interest  would  oppose  the  plan  of  government. 
Mr.  Mason  had  a  mortal  hatred  against  paper 
money,  but  he  was  unwilling  to  tie  the  hands 
of  the  government  against  all  emergencies.  Mr. 
Gorham  thought  the  authority  was  implied  in 
that  of  borrowing,  so  far  as  it  was  safe  and 
necessary. 

Mr.  Ellsworth  thought  it  "  a  favorable  mo- 
ment to  shut  and  bar  the  door  against  paper 
money."  The  mischiefs  of  it  were  fresh  in  the 
public  mind,  and  keenly  felt.  "  The  power  may 
do  harm,  never  good."  Mr.  Butler  remarked 
that  paper  money  was  not  anywhere  in  Europe 
a  legal  tender ;  to  which  Mr.  Mason  replied, 
neither  was  the  power  denied  in  Europe.  Mr. 
Read  observed  that  the  words,  if  not  struck  out, 
"  would  be  as  alarming  as  the  mark  of  the  beast 
in  Revelation."  Mr.  Langdon  would  rather  re- 
ject the  whole  plan  than  retain  the  obnoxious 
words. 

They  were  struck  out  by  vote  of  all  the  States 
(9)  except  New  Jersey  and  Maryland.  Mr. 
Madison  notes  that  he  was  satisfied  the  omis- 


148      EVOLUTION   OF  THE  CONSTITUTION 

sion  of  the  clause  would  not  prevent  the  issue 
of  public  notes  so  far  as  safe  and  proper ;  and 
"would  only  cut  off  the  pretext  for  2.  paper  cur- 
rency, and  particularly  for  making  the  bills  a 
tender,  either  for  public  or  private  debts."  (Mad- 
ison Papers,  vol.  iii,  p.  1 346.) 

When  the  question  of  the  powers  to  be  de- 
nied to  the  States  was  presented,  Mr.  Wilson 
and  Mr.  Sherman  moved  to  insert,  after  the 
prohibition  of  coining  money,  the  words  "  nor 
emit  bills  of  credit,  nor  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of 
debts."  Mr.  Gorham  hesitated,  fearing  to  arouse 
the  opposition  of  the  States,  and  willing  that  the 
power  should  remain  among  those  which  might 
be  exercised  by  the  States  "  with  the  assent  of 
Congress."  Mr.  Sherman  would  crush  paper 
money  at  once.  On  that  part  denying  to  the 
States  the  right  to  emit  bills,  all  the  States  voted 
to  prohibit  it  except  Virginia,  with  Maryland 
divided.  Upon  the  prohibition  against  making 
anything  but  coin  a  legal  tender,  the  opinion 
was  unanimous. 

Thus  were  the  States  forever  prevented  from 
again  incurring  for  themselves  the  countless 
evils  which  they  had  already  suffered  from  a 
forced  paper  currency.  There  is  little  doubt 
that  the  Convention  also  believed  the  Union 
to  be  saved  from  the  same  peril,  when  they 
struck  out  from  the  powers  of  the  new  national 


OTHER  SPECIAL  PROVISIONS  149 

government  that  of  emitting  bills  of  credit. 
There  is  no  trace  in  the  recorded  debates  of 
the  belief  of  a  single  member  that  under  the 
power  "  to  borrow  money  "  the  Congress  could 
exercise  the  power  of  making  their  bills  a  legal 
tender  for  private  debts.  There  is  rather  the 
contrary  indication,  that  they  considered  this 
authority  non-existent,  unless  it  should  be  enu- 
merated among  the  express  powers  granted. 
The  authority  as  assumed  in  later  years  appears 
to  have  been  an  unwarranted  deduction  from 
the  general  power  to  provide  for  carrying  into 
effect  other  powers  which  were  granted.  The 
Convention,  while  prohibiting  the  power  to  the 
States,  supposed  it  sufficient  to  simply  with- 
hold the  authority  from  the  Congress  of  the 
United  States. 

TREATIES    AND   THEIR   FORCE. 

In  distributing  the  powers  to  the  various 
branches  of  the  government,  the  Committee 
of  Detail  assigned  to  the  Senate  the  power 
to  make  treaties,  with  the  correlative  power  to 
appoint  ambassadors.  Mr.  Hamilton's  plan  had 
proposed  to  invest  this  body  with  the  power 
to  declare  war,  while  he  associated  it  with 
the  President  in  advising  and  consenting  to 
treaties.  But  neither  this  nor  any  other  plan, 
except  that  of  Virginia,  was  made  the  basis 
of  action,  although  traces  of  their  provisions 


ISO     EVOLUTION    OF  THE   CONSTITUTION 

are  seen  in  the  motions  made  for  amendment 
of  the  plan  always  under  debate.  It  is  doubt- 
less true  that  some  of  the  propositions  made 
by  Mr.  Charles  Pinckney  and  Mr.  Hamilton,  as 
well  as  of  those  in  the  New  Jersey  and  Con- 
necticut schemes,  found  adoption  in  the  various 
amendments  made  to  the  original  plan. 

But  this  provision,  giving  the  Senate  the 
sole  power  over  treaties,  appears  to  have 
been  accepted  in  the  first  instance  by  common 
consent.  On  August  15,  Mr.  Mason,  while  op- 
posing another  power  of  the  Senate,  observed 
they  "  could  already  sell  the  whole  country  by 
means  of  treaties."  Mr.  Mercer  in  reply  said, 
"  The  Senate  ought  not  to  have  the  power  of 
treaties.  This  power  belonged  to  the  executive 
.department;"  and  added  that  treaties  would 
not  be  final,  so  as  to  alter  the  laws  of  the  land, 
till  ratified  by  legislative  authority,  as  was  the 
case  in  Great  Britain.  Mr.  Mason  rejoined,  that 
he  "  did  not  say  a  treaty  would  repeal  a  law,  but 
that  the  Senate  might  by  means  of  treaties  alien- 
ate territory,  etc.,  without  legislative  sanction ; 
an  example  was  found  in  the  British  cession  of 
West  India  Islands  by  treaty  alone.  If  Spain 
should  take  possession  of  Georgia,  the  Senate 
might  by  treaty  dismember  the  Union." 

Upon  the  direct  consideration  of  this  article, 
Mr.  Madison  observed  that,  as  the  Senate  repre- 
sented the  States,  and  for  other  reasons  as  well, 


OTHER  SPECIAL  PROVISIONS  151 

"  it  was  proper  that  the  President  should  be  an 
agent  in  treaties."  Gouverneur  Morris  doubted 
about  referring  to  the  Senate  the  making  of 
treaties  in  any  degree ;  but  for  the  present  would 
only  move  as  an  amendment,  "but  no  treaty 
shall  be  binding  on  the  United  States  which  is 
not  ratified  by  law."  Mr.  Madison  spoke  of  the 
inconvenience  of  requiring  a  legal  ratification 
of  treaties  of  alliance  in  case  of  war,  and  in 
many  other  cases.  Mr.  Gorham  called  atten- 
tion to  "  many  other  disadvantages  if  treaties  of 
peace  and  all  negotiations  are  to  be  previously 
ratified ;  and  if  not  previously,  the  ministers 
would  be  at  a  loss  how  to  proceed.  American 
ministers  must  go  abroad  not  instructed  by  the 
same  authority  which  is  to  ratify  their  proceed- 
ings." Mr.  Morris  answered  that  the  result 
would  be  that  foreign  governments  must  send 
their  ministers  here  (for  an  alliance),  which 
he  desired.  Mr.  Wilson  was  inclined  for  the 
amendment.  Without  it  "  the  Senate  could  by 
treaty  require  all  the  rice  of  South  Carolina  to 
be  sent  to  one  particular  port."  Mr.  Dickinson 
concurred. 

Dr.  Johnson  thought  it  a  solecism  "  that  the 
acts  of  a  minister  with  plenipotentiary  powers 
from  one  body  should  depend  for  ratification 
upon  another  body.  The  British  king  had  full 
authority  to  make  treaties  and  ratify  them ;  and 
if  Parliament  refused  to  provide  for  carrying 


152     EVOLUTION  OF  THE  CONSTITUTION 

them  into  effect  it  was  a  violation  of  the  treaty." 
Mr.  Randolph  thought  best  to  postpone  its  fur- 
ther consideration,  in  view  of  the  objections  to 
the  clause ;  but  on  this  motion  the  vote  was 
equally  divided. 

The  question  was  then  put  on  the  amendment 
requiring  ratification  of  treaties  by  law;  and 
only  Pennsylvania  voted  for  it,  North  Carolina 
being  divided,  and  eight  States  voted  against  it. 

After  adding  "other  public  ministers"  to 
ambassadors,  the  whole  clause  was  postponed 
for  further  consideration  and  referred  to  the 
committee  of  five  before  appointed.  Mr.  Madi- 
son suggested  a  possible  distinction  in  the  mode 
of  ratification  between  treaties  eventual,  or  of 
alliance  for  limited  terms,  and  other  treaties ; 
the  former  to  depend  alone  on  the  President 
and  Senate. 

From  another  committee,  charged  with  reso- 
lutions respecting  the  executive,  on  the  4th  of 
September,  came  a  report  in  which  this  pro- 
posal was  made :  "  The  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  have 
power  to  make  treaties ; "  and  in  the  same  man- 
ner the  appointment  of  ambassadors  and  other 
public  ministers  was  transferred  to  him.  But 
upon  this  power  to  make  treaties  was  put  the 
following  limitation :  "  But  no  treaty  shall  be 
made  without  the  consent  of  two  thirds  of  the 
members  present." 


OTHER  SPECIAL  PROVISIONS  153 

Mr.  Wilson,  seconded  by  Mr.  Fitzsimons, 
recalling  the  provision  already  adopted,  that 
this  Constitution,  the  laws  under  it,  and  treaties 
"  shall  be  the  supreme  law  of  the  land,"  moved 
to  add  to  "  the  Senate  "  the  words  "  and  House 
of  Representatives,"  so  as  to  involve  the  whole 
law-making  power  as  necessary  to  validate  a 
treaty.  "  As  treaties,"  he  said,  "  are  to  have  the 
operation  of  laws,  they  ought  to  have  the  sanc- 
tion of  laws  also."  He  thought  this  outweighed 
the  reasonable  objection  that  secrecy  was  neces- 
sary in  the  business  of  making  treaties. 

Mr.  Sherman  averred  "  that  the  necessity  of 
secrecy  in  the  case  of  treaties  forbade  a  refer- 
ence of  them  to  the  whole  legislature.  The 
only  question  was,  whether  the  power  could  be 
safely  trusted  to  the  Senate,  and  he  thought  it 
could  be." 

Then  the  vote  was  taken,  and  Pennsylvania 
alone  supported  Mr.  Wilson.  The  other  ten 
States  voted  for  excluding  the  House  of  Repre- 
sentatives from  participation  in  the  making  or 
ratification  of  treaties. 

The  clause  requiring  two  thirds  of  the  Sen- 
ate for  ratification  was  opposed  by  Mr.  Wilson, 
as  enabling  a  minority  to  overrule  a  majority. 
Mr.  King  concurred,  because  here  was  added 
the  element  of  consent  of  the  executive  power 
as  a  security.  Mr.  Madison  thought  treaties 
of  peace  should  be  facilitated,  and  moved  that 


154     EVOLUTION   OF  THE   CONSTITUTION 

only  a  majority  be  required  for  them ;  and  it 
was  unanimously  agreed  to.  He  then  went 
further,  to  guard  against  Presidential  ambition 
and  love  of  power  in  time  of  war,  and  proposed 
that  two  thirds  of  the  Senate  might  make 
peace  without  his  consent.  Mr.  Butler  con- 
curred. Mr.  Gorham  thought  this  unnecessary, 
because  the  means  for  carrying  on  war  were  in 
legislative  hands  and  might  be  refused.  Gou- 
verneur  Morris  added  that  the  President,  as 
general  guardian  of  the  national  interests,  was 
entitled  to  concur  in  the  making  of  peace. 
Mr.  Gerry  thought  there  was  perhaps  more 
need  of  caution  in  treaties  of  peace  than  in 
other  treaties,  as  fisheries  and  boundaries,  etc., 
would  be  at  stake ;  and  so  thought  Dr.  Wil- 
liamson. Mr.  Madison*s  motion  was  defeated 
by  eight  States  against  three. 

Afterwards,  Messrs.  Williamson  and  Spaight 
recurred  to  the  subject  of  the  amendment 
which  allowed  treaties  of  peace  to  be  made 
with  consent  of  a  majority  of  senators,  and 
moved  to  require  two  thirds  in  case  territorial 
rights  were  affected.  Mr.  King  would  extend 
it,  then,  "  to  all  present  rights  of  the  United 
States."  The  next  day  Mr.  King  moved  to 
strike  out  the  exception  made  of  treaties  of 
peace ;  and  Mr.  Wilson  did  not  desire  two- 
thirds  majority  in  any  case.  A  reconsideration 
was  agreed  to. 


OTHER  SPECIAL  PROVISIONS  155 

Gouverneur  Morris  recognized  the  fisheries 
and  the  Mississippi  as  "  the  two  great  objects 
of  the  Union ; "  and  the  legislature  would  be 
unwilling  to  make  war  on  that  account,  if  a 
majority  of  the  Senate  could  make  peace.  Mr. 
Wilson  remarked  that  if  two  thirds  was  re- 
quired for  peace,  a  minority  might  perpetuate 
war ;  and  the  old  grounds  of  debate  were  again 
traversed.  The  exception  of  treaties  of  peace 
was  finally  stricken  out  by  a  vote  of  all  the 
other  States  against  New  Jersey,  Delaware, 
and  Maryland. 

Mr.  Wilson  and  Mr.  Dayton  then  moved  to 
amend,  so  as  to  require  only  a  majority  of  the 
Senate  in  all  cases  of  treaties.  This  failed  by 
nine  States  against  Delaware,  with  Connecti- 
cut divided. 

Then  Mr.  Rutledge  and  Mr.  Gerry  moved, 
in  the  contrary  direction,  that  for  all  treaties 
the  consent  of  two  thirds,  not  of  a  quorum,  but 
of  all  the  senators,  should  be  required.  This 
was  defeated  by  eight  votes  to  three.  Mr. 
Sherman  next  moved  for  a  majority  of  all  the 
senators  in  such  cases.  This  was  defeated,  six 
States  against  five.  Mr.  Madison  then  sought 
to  require  two  thirds  for  a  quorum.  This  was 
defeated  by  a  vote  of  six  to  five.  Messrs.  Wil- 
liamson and  Gerry  then  moved  that  no  treaty 
should  be  concluded  without  previous  notice 
to  all  the  senators,  and  giving  reasonable  time 


156     EVOLUTION   OF  THE   CONSTITUTION 

for  their   attendance.     Only  Georgia,   North 
Carolina,  and  South  Carolina  supported  this. 

Then  the  vote  jj^as  finally  taken  on  the 
treaty  power  as  it  now  stands  in  the  Constitu- 
tion, and  it  was  accepted  by  all  the  States  ex- 
cept Pennsylvania,  New  Jersey,  and  Georgia. 

It  would  appear  from  the  course  of  the  de- 
bate, and  from  the  votes,  that  the  mind  of  the 
Convention  was  never  wholly  clear  respecting 
the  case  of  conflict  between  legislative  acts  and 
treaties.  They  evidently  regarded  a  treaty,  ap- 
proved by  two  thirds  of  the  Senate  and  the 
executive,  as  a  supreme  law,  equal  in  force  to 
any  legislative  act,  and  everywhere  obligatory. 
It  is  probable  that  they  considered  a  subse- 
quent act  of  Congress  contravening  its  provi- 
sions, or  refusing,  or  failing  to  provide  means  to 
execute  it  as  a  violation  of  it,  to  be  adjusted  as 
other  violations  of  treaties  must  be  adjusted. 
Doubtless  they  considered  it  unlikely  that  the 
executive  and  Senate  who  had  made  the  treaty 
could  consent  to  such  a  violative  act ;  but  the 
other  House  might  refuse  legislation  to  exe- 
cute the  treaty.  Certainly  they  made  no  dis- 
tinction between  treaties,  whether  of  peace,  of 
alliance,  of  commerce,  or  for  any  other  object 
of  international  negotiation.  Whatever  the 
treaty,  when  duly  ratified  it  became  the  law  of 
the  land.  There  always  remained  as  a  security 
for  the  treaty-making  power  the  right  to  make 


OTHER  SPECIAL  PROVISIONS  157 

the  treaty  conditional  on  the  approval  of  the 
whole  legislative  authority.  Otherwise,  the 
treaty  being  unconditional,  a  failure  to  execute 
it  involved  its  breach,  and  justified  a  demand 
by  the  other  contracting  nation  for  redress 
upon  peril  of  war,  or  other  retaliation. 

Washington,  in  refusing  the  call  of  the 
House  of  Representatives  for  the  executive 
instructions  touching  the  Jay  Treaty,  denied 
the  right  of  the  House  of  Representatives 
under  the  Constitution  to  participate  in  the 
making  of  treaties,  in  all  cases  without  excep- 
tion. In  his  Message  of  March  30,  1796,  he 
says : — 

"  Having  been  a  member  of  the  General 
Convention  and  knowing  the  principles  on 
which  the  Constitution  was  formed,  I  have 
ever  entertained  but  one  opinion  on  this  sub- 
ject; and  from  the  first  establishment  of  the 
government  to  this  moment  my  conduct  has 
exemplified  that  opinion  —  that  the  power  of 
making  treaties  is  exclusively  vested  in  the 
President,  by  and  with  the  advice  and  consent 
of  the  Senate,  provided  two  thirds  of  the  sen- 
ators present  concur  ;  and  that  every  treaty  so 
made  and  promulgated  thenceforward  became 
the  law  of  the  land.  It  is  thus  that  the  treaty- 
making  power  has  been  understood  by  foreign 
nations,  and  in  all  the  treaties  made  with  them 
we  have  declared  and  they  have  believed  that, 


158      EVOLUTION   OF  THE   CONSTITUTION 

when  ratified  by  the  President,  with  the  advice 
and  consent  of  the  Senate,  they  became  obliga- 
tory. In  this  construction  of  the  Constitution 
every  House  of  Representatives  has  heretofore 
acquiesced ;  and  until  the  present  time  not  a 
doubt  or  suspicion  has  appeared,  to  my  know- 
ledge, that  this  construction  was  not  a  true 
one.  Nay,  they  have  more  than  acquiesced ; 
for  till  now,  without  controverting  the  obliga- 
tion of  such  treaties,  they  have  made  all  the 
requisite  provisions  for  carrying  them  into 
effect. 

"  There  is  also  reason  to  believe  that  this 
construction  agrees  with  the  opinions  enter- 
tained by  the  state  conventions  when  they  were 
deliberating  on  the  Constitution,  especially  by 
those  who  objected  to  it  because  there  was  not 
required  in  commercial  treaties  the  consent  of 
two  thirds  of  the  whole  number  of  the  mem- 
bers of  the  Senate  instead  of  two  thirds  of  the 
senators  present,  and  because  in  treaties  re- 
specting territorial  and  certain  other  rights  and 
claims  the  concurrence  of  three  fourths  of  the 
whole  number  of  the  members  of  both  Houses, 
respectively,  was  not  made  necessary." 

"  If  other  proofs  than  these  and  the  plain 
letter  of  the  Constitution  itself  be  necessary  to 
ascertain  the  point  under  consideration,  they 
may  be  found  in  the  journals  of  the  General 
Convention,  which   I  have  deposited    in  the 


OTHER  SPECIAL  PROVISIONS  159 

office  of  the  Department  of  State.  In  those 
journals  it  will  appear  that  a  proposition  was 
made  *that  no  treaty  should  be  binding  on 
the  United  States  which  was  not  ratified  by  a 
law/  and  that  the  proposition  was  explicitly 
rejected." 

After  more  than  one  hundred  years  of  ex- 
perience in  the  formation  of  treaties  with  all 
nations,  and  relative  to  all  the  subjects  of  in- 
ternational negotiation,  the  extent  of  the  power 
granted  continues  in  the  field  of  congressional 
debate ;  particularly  in  its  relation  to  commer- 
cial treaties  involving  modifications  of  the 
tariff.  The  power  to  make  treaties  is  given 
without  any  limitation,  and  covers  every  sub- 
ject of  negotiation  between  nations.  The  power 
to  regulate  commerce  and  impose  revenue 
duties  was  given  to  Congress  in  equally  un- 
limited terms,  except  the  condition  that  they 
should  be  uniform  for  all  the  States.  We  have 
seen  that  the  attention  of  the  Convention  was 
repeatedly  called  to  a  possible  conflict  in  the 
exercise  of  the  powers.  Still  the  Convention  ad- 
hered to  the  duplicate  provisions,  apparently  im- 
pressed by  the  necessity  that  Congress  should 
have  power  over  the  general  system,  and  that 
the  treaty-making  power  should  have  the  right 
to  make  exceptional  provisions  adapted  to  the 
ever  varying  conditions  of  intercourse  with  dif- 
ferent foreign  nations. 


i6o     EVOLUTION  OF  THE  CONSTITUTION 

The  only  reasonable  interpretation  of  the 
conflicting  clauses  of  the  Constitution  has  since 
been  adopted  by  the  Supreme  Court  of  the 
United  States,  and  should  be  regarded  as 
now  settled  upon  the  highest  authority.  After 
several  decisions  which  discussed  different 
phases  of  the  question,  that  eminent  and  final 
tribunal  gave  its  decision  upon  the  effect  of 
both  clauses  in  the  following  emphatic  lan- 
guage :  — 

"  The  effect  of  treaties  and  acts  of  Congress, 
when  in  conflict,  is  not  settled  by  the  Consti- 
tution. But  the  question  is  not  involved  in 
any  doubt  as  to  its  proper  solution.  A  treaty 
may  supersede  a  prior  act  of  Congress,  and 
an  act  of  Congress  may  supersede  a  prior 
treaty." ' 

The  method  by  which  "  the  advice  and  con- 
sent of  the  Senate  "  has  been  invited,  or  given, 
has  varied  greatly  during  the  lapse  of  the  first 
century  of  the  Constitution.  In  the  early  years 
when  that  body  was  small  in  numbers,  Wash- 
ington, accompanied  by  the  Cabinet  member 
in  charge  of  the  subject,  personally  visited  the 
Senate  to  consult  them,  but  he  soon  found 
that  method  unsatisfactory,  and  even  person- 
ally disagreeable,  and  abandoned  it.  He  and 
following  presidents  substituted  a  written  mes- 

^  II  Wall  621 ;  Story's  Commentaries  on  the  Constitution, 
sec.  1 508.   Seg  also  Cooky's  Commentaries. 


OTHER  SPECIAL  PROVISIONS  i6i 

sage  of  inquiry  addressed  to  the  Senate,  and 
the  response  was  by  a  resolution  of  that  body 
in  answer  to  his  inquiry.  This  was  sometimes 
done  before  the  negotiation  of  the  treaty ;  and 
sometimes  the  nomination  of  a  diplomatic  min- 
ister was  accompanied  with  a  statement  of  the 
object  of  his  appointment.  During  Madison's 
administration  the  President  declined  to  re- 
ceive a  Committee  of  the  Senate  in  consulta- 
tion on  the  subject,  declaring  that  a  committee 
could  with  propriety  only  consult  the  depart- 
ment in  charge.  The  Senate  itself  was  consti- 
tutionally the  only  body  for  consultation  by 
and  advice  to  the  President  in  making  treaties. 
The  later  presidents  at  times  consulted  the 
Senate  by  a  message  of  inquiry  in  advance  of 
making  the  treaty.  But  gradually  they  adopted 
in  the  majority  of  cases  the  habit  of  completing 
the  negotiation  of  a  treaty  in  advance  of  its 
submission  to  the  Senate,  and  presenting  it  as 
a  completed  document  for  their  ratification  or 
rejection.  The  Senate  in  its  turn  would  ratify 
or  reject  the  treaty,  or  consent  to  it  with  an 
amendment  which  they  proposed,  leaving  to  the 
President  his  constitutional  discretion  to  ap- 
prove the  amendment  and  continue  the  nego- 
tiations for  its  adoption,  or  to  reject  it,  and 
allow  the  negotiations  to  fail.  The  final  ratifi- 
cation is  with  the  President,  after  the  consent 
of  the  Senate  has  been  obtained. 


i62     EVOLUTION   OF  THE   CONSTITUTION 

THE    LEGISLATIVE    RIGHT    TO    ORIGINATE    MONEY 
BILLS. 

In  the  scheme  of  government,  as  originally 
approved  in  the  committee  of  the  whole,  equal 
power  to  originate  legislation  was  given  to  the 
two  Houses  of  Congress  by  unanimous  con- 
sent. While  the  Virginia  resolutions  were 
under  consideration  on  the  last  day  in  the 
committee  of  the  whole,  Mr.  Gerry  moved  to 
insert,  "  except  money  bills,  which  shall  origi- 
nate in  the  first  branch  of  the  national  legisla- 
ture." Mr.  Butler  saw  no  reason  for  it :  "  We 
were  always  following  the  British  constitution, 
when  the  reason  of  it  did  not  apply.  There 
was  no  analogy  between  the  House  of  Lords 
and  the  body  now  proposed  to  be  established." 
Mr.  Madison  said,  "  The  Senate  would  be  the 
representation  of  the  people,  as  well  as  the 
first  branch."  Mr.  Sherman  observed,  "  We 
establish  two  branches  in  order  to  get  more 
wisdom,  which  is  particularly  needed  in  the 
finance  business.  The  Senate  bear  their 
share  of  the  taxes,  and  are  also  the  represent- 
atives of  the  people."  General  Pinckney  said, 
"  This  distinction  prevails  in  South  Carolina, 
and  has  been  a  source  of  pernicious  dis- 
putes between  the  two  branches."  The  mo- 
tion was  then  defeated  by  all  the  States 
except   New  York,  Delaware,  and   Virginia, 


OTHER  SPECIAL  PROVISIONS  163 

and  both  Houses  retained  equal  rights  in  all 
legislation. 

When  the  long  and  exasperating  debate 
occurred  upon  equality  of  state  representation 
in  the  two  Houses,  it  was  urged  on  the  part  of 
the  great  States  that  questions  of  revenue  ought 
to  be  determined  by  a  proportional  representa- 
tion. Otherwise,  a  minority  of  population,  repre- 
sented by  a  majority  of  States,  might,  contrary 
to  all  correct  principles,  impose  burdens  on 
the  majority  of  both  wealth  and  population. 
This  palpable  injustice  led  to  an  offer  on  the 
side  of  the  small  States  that  "  all  bills  for  rais- 
ing or  appropriating  money,  and  for  fixing 
the  salaries  of  the  officers  of  the  government 
of  the  United  States,  shall  originate  in  the 
first  branch  of  the  legislature,  and  shall  not  be 
altered  or  amended  by  the  second  branch ;  and 
that  no  money  shall  be  drawn  from  the  public 
treasury  but  in  pursuance  of  appropriations  to 
be  originated  in  the  first  branch."  This  offer 
was  conditioned  upon  the  acceptance  of  an 
equal  vote  in  the  Senate.  A  committee,  of 
which  Mr.  Gerry  was  chairman,  so  reported 
the  plan  on  July  5. 

Mr.  Madison  regarded  this  as  no  valuable 
concession  to  the  great  States.  "  Experience 
proved  that  it  had  no  effect.  If  some  States 
in  the  upper  branch  wished  a  bill  to  be  origi- 
nated, they  surely  might  find  some  member 


.  i64     EVOLUTION   OF  THE   CONSTITUTION 

from  the  same  States  in  the  lower  branch  who 
would  originate  it."  As  for  amendments,  they 
"  could  be  handed  privately  by  the  Senate  to 
members  of  the  other  House.  Bills  could  be 
negatived,  that  they  might  be  sent  up  in  the 
desired  shape."  Gouverneur  Morris  and  others 
warmly  opposed  tjie  plan.  Mr.  Wilson  shrewdly 
remarked,  "  If  both  branches  were  to  say  yes 
or  no,  it  was  of  little  consequence  which  should 
say  yes  or  no  first,  which  last."  It  would  be 
better  to  reverse  the  order,  for  "  it  was  a  maxim 
that  the  least  numerous  body  was  the  fittest 
for  deliberation,  —  the  most  numerous  for  de- 
cision." The  question  was  taken  on  this  clause ; 
and  for  it  voted  Connecticut,  New  Jersey, 
Delaware,  Maryland,  and  North  Carolina  (5). 
Against  it  were  Pennsylvania,  Virginia,  South 
Carolina  (3),  with  Massachusetts,  New  York, 
and  Georgia  divided.  Although  only  five  States 
out  of  eleven  voted  for  it,  under  their  rules  it 
stood  as  affirmed.  But  it  was  well  understood 
that  it  was  still  an  open  question. 

On  the  1 6th  of  July,  after  references  of  the 
compromise  to  special  committees  and  much 
debate,  the  question  was  taken  on  the  com- 
promise as  a  whole,  including  the  equal  vote 
in  the  Senate,  the  proportional  vote  in  the 
House,  and  the  clause  in  question  ;  and  it  was 
carried  by  the  same  five  States  in  the  affirmative 
against  the  same  three  States  and  Georgia  in 


OTHER   SPECIAL   PROVISIONS  165 

the  negative,  with  Massachusetts  divided  and 
New  York  absent.  In  this  form  it  went  to  the 
Committee  of  Detail,  but  still  unsupported  by 
a  majority  of  the  States. 

Again,  upon  the  report  of  this  committee,  it 
came  into  debate,  and  Mr.  Pinckney  moved  to 
strike  out  the  clause,  and  was  supported  by 
Gouverneur  Morris,  Mr.  Wilson,  and  Mr.  Madi- 
son. Mr.  Mason,  Mr.  Butler,  and  Mr.  Ellsworth 
thought  it  had  better  stand  as  a  compromise. 
Mr.  Gorham  was  in  favor  of  originating  the 
bills  in  the  House,  but  giving  power  to  the 
Senate  to  amend.  The  clause  was  struck  out 
by  the  votes  of  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  South  Carolina, 
and  Georgia  (7),  against  New  Hampshire, 
Massachusetts,  Connecticut,  and  North  Caro- 
lina (4),  without  disturbing  the  equality  of 
States  in  the  Senate.  But  Mr.  Randolph  gave 
notice  of  a  motion  to  reconsider,  and  Mr.  Mason, 
with  some  others,  still  regarded  it  as  necessary 
to  adhere  to  the  compromise,  although  the 
large  States  had  disclaimed  its  supposed  value 
and  the  small  States  were  willing  to  adhere  if 
the  large  States  desired  it. 

Upon  the  reconsideration,  Mr.  Randolph 
proposed  to  limit  the  exclusive  power  to 
"  bills  for  the  purpose  of  revenue,"  to  obviate 
objection  to  the  words  "  raising  money,"  which 
might  happen  incidentally,  not  allowing  the 


i66     EVOLUTION   OF  THE   CONSTITUTION 

Senate  by  amendment  to  either  increase  or 
diminish  the  same.  His  motion  was  in  the  fol- 
lowing words :  "  Bills  for  raising  money  for  the 
purpose  of  revenue,  or  for  appropriating  the 
same,  shall  originate  in  the  House  of  Repre- 
sentatives; and  shall  not  be  so  amended  or 
altered  by  the  Senate  as  to  increase  or  dimin- 
ish the  sum  to  be  raised,  or  change  the  mode  of 
levying  it,  or  the  object  of  its  appropriation." 

Mr.  Mason  renewed  his  arguments  in  its 
favor.  Mr.  Wilson  again  opposed  it  with 
warmth.  He  said  "it  would  be  a  source  of 
perpetual  contentions  when  there  was  no  medi- 
ator to  decide  them.  The  President  here  could 
not,  like  the  executive  in  England,  interpose 
by  a  prorogation  or  dissolution.  This  restric- 
tion had  been  found  pregnant  with  altercation 
in  the  eight  States  where  the  constitutions  had 
established  it.  The  House  of  Representatives 
will  insert  other  things  in  money  bills,  and,  by 
making  them  conditions  of  each  other,  destroy 
the  deliberate  liberty  of  the  Senate."  And  he 
recited  a  remarkable  case  of  this  misuse  of 
power  by  the  House  of  Commons.  Gouver- 
neur  Morris  thought  its  proposed  advantages 
illusory,  because  the  "Senate  could  tire  out 
the  other  House  and  extort  their  concurrence 
in  favorite  measures  as  well  by  their  negative 
or  withholding  their  assent  as  by  adhering  to 
a  bill  introduced  by  themselves.    In  respect  to 


OTHER   SPECIAL  PROVISIONS  167 

the  representatives  '  holding  the  purse-strings,' 
both  Houses  must  concur  in  the  untying;  and 
of  what  importance  could  it  be  which  untied 
first,  which  last  ?  "  Mr.  Madison  made  a  full 
argument  on  the  same  side.  Mr.  Read  would 
follow  the  example  of  many  of  the  States, 
retaining  the  exclusive  authority  in  the  first 
House,  but  giving  the  Senate  liberty  to  amend. 
Mr.  Carroll  said  the  clause  in  the  Maryland 
constitution  was  "  a  source  of  continual  diffi- 
culty and  squabble  between  the  two  Houses." 

At  the  end  of  this  searching  debate  (Au- 
gust 1 3)  three  votes  were  taken.  First,  on  the 
exclusive  right  in  the  first  House  to  originate 
money  bills :  the  ayes  were  New  Hampshire, 
Massachusetts,  Virginia,  North  Carolina  (4) ; 
the  noes  were  Connecticut,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  South  Carolina, 
Georgia  (7).  Second,  on  originating  by  the 
first  House  and  amending  by  the  Senate :  the 
vote  was  the  same,  —  noes  seven,  ayes  four. 
Third,  on  the  question  of  no  appropriations 
of  money  except  those  originating  in  the  first 
House :  Massachusetts  alone  voted  aye  (i),  the 
other  ten  States  voting  no. 

Here,  for  the  first  time,  appears  a  very  strong 
conviction  of  the  Convention  that  a  distinction 
should  be  made  between  bills  for  raising  reve- 
nue and  bills  for  appropriating  money. 

Two  days  later  Mr.  Strong,  of  Massachu- 


i68      EVOLUTION   OF  THE   CONSTITUTION 

setts,  moved  to  insert  in  another  place  the 
same  clause  of  Mr.  Randolph  which  had  been 
voted  down  on  the  13th.  It  was  thought  best 
to  postpone  the  question  for  the  time  and 
consider  other  matters,  which  was  done.  Sub- 
sequently a  committee  of  eleven  was  appointed 
to  consider  various  old  and  new  questions  of 
detail  in  the  Constitution  as  reported,  and  on 
the  5th  of  September  Mr.  Brearley  reported 
from  this  committee,  among  other  clauses,  the 
following :  "  All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives,  and 
shall  be  subject  to  alterations  and  amendments 
by  the  Senate  ;  no  money  shall  be  drawn  from 
the  treasury  but  in  consequence  of  appropria- 
tions made  by  law." 

Again  it  was  postponed  on  motion  of  Gou- 
verneur  Morris,  who  said  it  had  been  '*  agreed 
in  the  committee  on  the  ground  of  compro- 
mise," and  he  wished  to  await  the  disposition 
of  other  clauses.  Though  opposed,  this  motion 
was  carried  by  nine  States  against  two.  On 
the  8th  of  September  the  long  dispute  was 
ended.  After  a  verbal  amendment,  which  was 
made  unanimously,  the  clause  was  adopted  as 
it  now  appears  in  the  Constitution,  except  that 
the  Committee  on  Style,  in  their  revision, 
transposed  the  last  clause  to  another  place. 
The  final  vote  shows  its  acceptance  by  all 
the  States  except   Delaware   and   Maryland. 


OTHER  SPECIAL  PROVISIONS  169 

Among  the  published  objections  of  George 
Mason,  on  account  of  which  he  refused  to  sign 
the  Constitution,  was  this,  that  "the  Senate 
have  the  power  of  altering  all  money  bills  and 
of  originating  appropriations  of  money." 

It  thus  appears  that  by  express  votes  the  Con- 
vention refused  to  extend  the  exclusive  power 
of  the  House  beyond  bills  for  raising  revenue, 
and  by  express  vote  decided  to  leave  in  the 
Senate  an  equal  power  to  originate  bills  mak- 
ing appropriations  of  public  money,  and  that 
only  a  minority  of  the  Convention  attached  con- 
stitutional importance  to  the  former  provision. 

ADMISSION    OF   NEW   STATES. 

It  was  among  the  clauses  of  the  Virginia 
plan  that  provision  should  be  made  for  the  ad- 
mission of  new  States  into  the  Union,  whether 
with  a  voluntary  junction  of  government  and 
territory,  or  otherwise,  and  without  requiring 
the  consent  of  all  the  States.  This  was  agreed 
to  in  the  committee  of  the  whole.  It  was  re- 
membered that  there  had  been  discussion  of 
new  States  to  be  formed  in  the  west  of.  North 
Carolina,  west  of  Pennsylvania,  in  Maine,  in 
Vermont,  and  in  the  Western  region.  In  the 
Convention  itself  there  had  been  talk  (June  18) 
of  a  readjustment  of  territory  among  the  States 
with  a  view  to  equalize  them. 

When  the  Committee  of  Detail  made  their 


170      EVOLUTION   OF  THE  CONSTITUTION 

report,  this  clause,  modified  in  form,  provided 
for  the  admission  of  "  new  States  lawfully  con- 
stituted or  established  within  the  limits  of  the 
United  States ;  "  but  requiring  the  consent  of 
two  thirds  of  each  House  of  Congress.  If 
formed  within  the  limits  of  an  existing  State, 
the  consent  of  its  legislature  was  required. 
They  were  to  come  in  on  equal  terms  with  old 
States,  but  might  be  subjected  to  conditions 
concerning  the  public  debt  then  existing. 

Gouverneur  Morris  objected  to  this  equal- 
ity, with  only  the  condition  respecting  the 
public  debt.  He  did  not  wish  to  bind  the  legis- 
lature to  admit  Western  States  on  such  terms. 
Mr.  Madison,  Mr.  Mason,  and  Mr.  Sherman 
thought  it  wise  to  make  them  equals  and  not 
degrade  them.  The  best  policy  was  to  treat 
them  as  friends,  not  enemies.  Mr.  Morris  ad- 
mitted it  was  impossible  to  discourage  the 
growth  of  the  West ;  but  he  did  not  wish  to 
throw  the  power  into  their  hands.  Mr.  Lang- 
don  and  Dr.  Williamson  would  have  the  legis- 
lature free  to  act  according  to  circumstances. 
Mr.  Morris's  motion  prevailed,  and  that  part  of 
the  clause  was  struck  out. 

Mr.  Morris  then  moved  to  make  the  article 
read,  "  New  States  may  be  admitted  by  the 
legislature  into  the  Union ;  but  no  new  States 
shall  be  erected  within  the  limits  of  any  of 
the  present  States,  without  the  consent  of  the 


OTHER  SPECIAL   PROVISIONS  171 

legislature  of  such  State,  as  well  as  of  the 
general  legislature."  The  first  clause  was  ac- 
cepted unanimously ;  the  latter  clause  by  a 
vote  of  six  States  to  five.  There  arose  a  debate 
upon  the  point  of  requiring  the  assent  of  the 
old  States  before  a  new  State,  formed  out  of 
their  distant  lands,  and  with  separate  inter- 
ests, could  be  admitted ;  and  on  the  question 
of  admitting  Vermont,  which  had  received 
pledges,  independent  of  the  consent  of  New 
York.  Mr.  Dickinson  held  it  improper  to  re- 
quire the  small  States  to  secure  the  large  ones 
in  their  extensive  claims  of  territory.  Mr. 
Carroll  wanted  to  maintain  the  claim  of  the 
United  States  to  the  "  back-lands."  "  Were  the 
States  to  be  cut  up  without  their  consent } " 
suggested  Mr.  Rutledge.  Various  amendments 
and  provisos  were  offered  to  meet  objections, 
and  voted  on,  and  the  subject  was  clouded  by 
serious  differences  of  opinion.  Mr.  Morris  pro- 
posed a  substitute  which  passed,  eight  States 
to  three,  which  met  the  case  of  Vermont  and 
other  possible  cases,  by  employing  the  word 
jurisdiction,  instead  of  territory;  and  there 
was  added,  also  on  his  motion,  a  clause  giv- 
ing Congress  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting 
its  territory  and  property,  substantially  as  now 
found  in  Article  IV,  Section  3,  of  the  Con- 
stitution. 


172      EVOLUTION   OF  THE   CONSTITUTION 

Mr.  Morris  had  indulged  prejudices  and 
fears  respecting  "  that  range  of  new  States 
which  would  soon  be  formed  in  the  West," 
and  wanted  "  a  rule  of  representation  so  fixed 
as  to  secure  to  the  Atlantic  States  a  prevalence 
in  the  national  councils."  Their  interests 
would  be  different ;  they  would  know  less  of 
the  public  interest ;  and,  "  in  particular,  will  be 
little  scrupulous  of  involving  the  community 
in  wars,  the  burdens  and  operations  of  which 
would  fall  chiefly  on  the  maritime  States." 
There  ought,  therefore,  to  be  provisions  "to 
prevent  the  maritime  States  from  being  here- 
after outvoted  by  them."  Mr.  Gorham  had  ex- 
pressed similar  opinions  in  favor  of  "  dealing 
out  the  right  of  representation  in  safe  propor- 
tions to  the  Western  States." 

Mr.  Gerry  also  would  turn  attention  "  to  the 
dangers  apprehended  from  the  Western  States." 
He  would  admit  them  on  liberal  terms,  but 
not  put  himself  in  their  hands.  They  would 
oppress  commerce  and  drain  wealth  into  the 
Western  country.  He  would  limit  the  num- 
ber to  be  admitted,  so  that  they  could  never 
outnumber  the  Atlantic  States.  He  proposed  to 
limit  the  number  of  representatives  in  the  first 
branch  from  the  new  States,  so  that  they  should 
never  exceed  the  number  from  the  old  States 
which  should  accept  the  Constitution,  and  Mr. 
King  seconded   him.  Mr.   Sherman   thought 


OTHER  SPECIAL   PROVISIONS  173 

"  there  was  no  probability  that  the  number  of 
new  States  would  ever  exceed  that- of  the  exist- 
ing States.  Besides,  we  are  providing  for  our 
children  and  our  grandchildren,  who  would  be 
as  likely  to  be  citizens  of  new  Western  States 
as  of  the  old  States.  On  this  consideration 
alone  we  ought  to  make  no  such  discrimina- 
tion as  that  proposed."  Mr.  Gerry  admitted 
there  was  "a  rage  for  emigration  from  the 
Eastern  States  to  the  Western  country,  but 
he  did  not  wish  those  remaining  behind  to  be 
at  the  mercy  of  the  emigrants."  His  motion 
was  wisely  defeated  by  five  votes  against  four, 
with  Pennsylvania  divided. 

The  power  was  impliedly  left  in  Congress 
to  impose  conditions  on  the  admission  of  new 
States  not  involving  their  equal  representation ; 
but  it  has  never  been  harshly  used,  and  only 
applied  to  the  public  lands  and  Union  property, 
for  which  they,  in  turn,  have  been  well  com- 
pensated out  of  the  public  land.  The  injustice 
now  is  more  often  seen  in  refusal  of  admission 
when  solicited  and  merited.  They  have  nulli- 
fied all  the  original  fears  entertained  by  the 
Atlantic  States  and  have  vastly  strengthened 
the  Union. 

NATIONAL   CONTROL   OVER   STATES. 

In  the  Virginia  plan,  as  submitted  by  Gov- 
ernor Randolph,  appeared  the  following  pro- 


174      EVOLUTION   OF  THE   CONSTITUTION 

vision :  that  the  national  legislature  ought  to 
be  empowered  "  to  negative  all  laws  passed  by 
the  several  States  contravening,  in  the  opin- 
ion of  the  national  legislature,  the  Articles  of 
Union,  or  any  treaty  subsisting  under  the  au- 
thority of  the  Union ;  and  to  call  forth  the 
force  of  the  Union  against  any  member  of 
the  Union  failing  to  fulfil  its  duty  under  the 
Articles  thereof." 

This  proposition  seemed  to  be  the  corollary 
of  the  other  which  immediately  preceded  it : 
"  that  the  national  legislature  ought  to  be  em- 
powered ...  to  legislate  in  all  cases  to  which 
the  separate  States  are  incompetent,  or  in 
which  the  harmony  of  the  United  States  may 
be  interrupted  by  the  exercise  of  individual 
legislation."  Neither  Mr.  Pinckney  nor  Mr. 
Rutledge,  nor  Mr.  Randolph  himself  nor  Mr. 
Madison,  liked  the  vagueness  of  the  term  "  in- 
competent." They  all  wished  it  might  be  pos- 
sible to  enumerate  the  powers.  Nevertheless, 
the  phrase  was  adopted  by  a  vote  of  all  the 
States  except  Connecticut,  which  was  divided. 

On  the  right  to  negative  state  laws,  it  passed 
without  even  a  dissent,  upon  its  first  consider- 
ation. 

Upon  the  right  to  use  the  force  of  the 
Union  against  delinquent  States,  Mr.  Madison 
doubted  its  practicability  and  justice  "  when  ap- 
plied to  people  collectively  and  not  individu- 


OTHER  SPECIAL  PROVISIONS  175 

ally."  He  hoped  to  find  a  system  which  would 
render  this  resource  unnecessary ;  and  moved 
a  postponement,  which  was  agreed  to. 

The  right  to  negative  state  laws  came  up 
again  a  few  days  later,  when  Mr.  Pinckney 
moved  to  make  the  clause  read,  "  That  the  na- 
tional legislature  shall  have  authority  to  nega- 
tive all  laws  which  they  should  judge  to  be  im- 
proper." He  said  that "  the  States  must  be  kept 
in  due  subordination  to  the  nation ;  that  this 
universal  negative  was  in  fact  the  corner-stone 
of  an  efficient  national  government."  Mr.  Mad- 
ison agreed  with  him.  Mr.  Gerry  had  "  no  ob- 
jection to  authorize  a  negative  of  paper  money 
and  similar  measures,"  but  did  not  want  the 
power  to  go  too  far.  Mr.  Sherman  wanted  the 
negative  to  be  defined.  Mr.  Wilson  made  a 
cogent  argument  for  the  clause,  reminding  the 
Convention  of  the  brotherly  self-abnegation  of 
States  in  the  beginning  of  the  Revolution, 
when  they  would  say,  "  We  are  now  one  nation 
of  brethren,  —  we  must  bury  all  local  interests 
and  distinctions.  The  tables  at  length  began  to 
turn,  jealousy  and  ambition  to  display  them- 
selves. Each  endeavored  to  cut  a  slice  from 
the  common  loaf,  till  at  length  the  Confedera- 
tion became  frittered  down  to  the  impotent 
condition  in  which  it  now  stands.  It  is  the 
business  of  this  Convention  to  correct  its  vices, 
especially  the  want  of  an  effectual  control  in 


176      EVOLUTION   OF  THE  CONSTITUTION 

the  whole  over  its  parts."  Mr.  Bedford,  Mr. 
Butler,  and  Dr.  Williamson  opposed  the  mo- 
tion. It  was  defeated,  seven  States  to  three,  and 
Delaware  divided. 

It  was  discussed  in  Convention  July  17, 
when  Gouverneur  Morris  thought  the  power 
would  be  terrible  to  the  States,  and  that  it 
would  be  unnecessary  if  sufficient  powers  were 
conferred  on  the  general  government.  Mr. 
Sherman  also  believed  it  unnecessary,  as  the 
courts  in  the  States  would  hold  invalid  any  law 
contravening  the  authority  of  the  Union.  Mr. 
Martin  also  opposed  it,  but  Mr.  Madison  still 
maintained  its  necessity  for  the  preservation 
of  harmony  in  the  Union,  and  was  supported 
by  Mr.  Pinckney.  The  clause  was  then  de- 
feated by  all  the  States  against  only  Massa- 
chusetts, Virginia,  and  North  Carolina;  and  a 
substitute  was  unanimously  adopted,  declaring 
the  laws  of  the  Union  made  in  pursuance  of  its 
articles,  and  the  treaties,  "  to  be  the  supreme 
law  of  the  respective  States,"  and  binding  upon 
their  judiciary. 

On  the  23d  of  August  Mr.  Pinckney  re- 
newed the  effort  to  establish  a  negative  on 
state  laws,  and  was  supported  by  Mr.  Broom, 
of  Delaware,  Mr.  Madison,  Mr.  Wilson,  and 
Mr.  Langdon.  It  was  opposed  by  Messrs. 
Sherman,  Ellsworth,  Mason,  Gouverneur  Mor- 
ris, and  Rutledge.    The  latter  said,  "  Will  any 


OTHER  SPECIAL  PROVISIONS  177 

State  ever  agree  to  be  bound  hand  and  foot  in 
this  manner  ?  If  nothing  else,  this  alone  would 
damn,  and  ought  to  damn,  the  Constitution." 
After  an  adverse  vote,  six  States  against  five, 
Mr.  Pinckney  withdrew  the  proposition,  and 
the  effort  to  establish  this  right  in  Congress 
was  abandoned.  The  controlling  reasons  for 
this  change  of  opinion  appear  to  have  been, 
first,  its  offensiveness  to  the  States ;  second, 
the  difficulty  in  execution,  whether  all  laws 
must  be  sent  up  for  approval  or  suspended 
awaiting  Federal  decision,  or  other  manner  of 
its  exercise ;  third,  and  chiefly,  that  it  was  un- 
necessary, as  the  courts  were  bound  to  obey 
the  declared  and  admitted  supremacy  of  na- 
tional Constitution,  laws,  and  treaties. 

The  other  clause,  authorizing  force  against 
delinquent  States,  disappeared  under  the  strong 
objections  to  it  as  practically  suggesting  inter- 
necine war.  Having  adopted  the  plan  of  a 
government  acting  directly  on  the  people  and 
ignoring  in  national  affairs  the  separate  state 
jurisdictions,  except  as  geographical  divisions, 
force  was  only  needed  for  individuals,  and  would 
be  thus  applied  to  all  the  components  of  a  State, 
whose  corporate  action  could  give  no  rights 
or  justification  of  wrongs  against  the  supreme 
authority  of  the  Union.  The  whole  system  of 
quotas  and  requisitions  upon  States  being 
abandoned,  the  necessity  to  punish  state  delin- 


178      EVOLUTION   OF  THE   CONSTITUTION 

quency  no  longer  existed.  For  the  United 
States,  become  independent  of  and  supreme 
over  state  action  for  Federal  purposes,  there 
remained  for  punishment  only  the  individuals 
offending.  To  this  end  the  foregoing  provision 
was  moderated  into  one  giving  Congress  au- 
thority "  to  provide  for  calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  suppress 
insurrections,  and  repel  invasions." 

Thus  was  carried  out  the  original  and  grad- 
ually developed  scheme  of  a  supreme  govern- 
ment which  went,  both  for  its  authority  and 
for  its  effects,  behind  state  constitutions  and 
laws,  and  in  its  operations  recognized  only  one 
people  in  the  whole  land  subject  to  its  juris- 
diction. If  a  corporate  State  even  organized 
an  insurrection  against  the  United  States,  the 
force  of  the  Union  was  to  be  applied  to  all  the 
individuals  entering  into  it,  whether  state  offi- 
cers and  holding  state  commissions  or  simple 
volunteers.  All  would  be  equally  liable  to 
punishment  as  offending  citizens  of  the  United 
States  violating  their  supreme  allegiance. 

THE  GUARANTEE  OF  A  REPUBLICAN  FORM  OF 
GOVERNMENT  TO  THE  STATES,  AND  THEIR 
PROTECTION. 

The  eleventh  resolution  of  the  Virginia 
scheme  contained  the  proposition  that  the  na- 
tional government  should  guarantee  to  each 


OTHER   SPECIAL  PROVISIONS  179 

State  its  territory  and  a  republican  form  of 
government.  The  guarantee  of  territory,  as 
already  recited,  was  rejected  on  account  of  the 
uncertainty  of  its  extent  and  the  conflicting 
claims  of  States  and  of  the  United  States.  In 
the  discussion  upon  it,  Mr.  Read  added  the 
reason  that  the  proposal  "  abetted  the  idea  of 
distinct  States,  which  would  be  a  perpetual 
source  of  discord.  The  only  cure  for  this  evil 
was  in  doing  away  States  altogether,  and  unit- 
ing them  all  in  oi;ie  great  society." 

The  clause  was  first  passed  in  committee 
with  an  amendment  so  as  to  guarantee  "  a 
republican  constitution  and  its  existing  laws " 
to  each  State.  When  it  came  up  for  discussion 
Gouverneur  Morris  assailed  the  guarantee  of 
laws.  He  would  not  have  "  such  laws  as  exist 
in  Rhode  Island  guaranteed."  It  was  explained 
that  the  object  was  "  merely  to  secure  the  States 
against  dangerous  commotions,  insurrections, 
and  rebellions."  Mr.  Mason  thought  that  with- 
out this  right  "  the  general  government  must 
remain  a  passive  spectator  of  its  own  subver- 
sion," as  rebellions  against  the  United  States 
would  originate  in  the  individual  States.  Mr. 
Houstoun  did  not  want  existing  state  consti- 
tutions guaranteed  ;  some  of  them,  like  that  of 
Georgia,  were  bad. 

Mr.  Gorham  "  thought  it  strange  that  a  re- 
bellion should  be  known  to  exist  in  the  empire, 


i8o     EVOLUTION  OF  THE   CONSTITUTION 

and  the  general  government  have  no  power  to 
subdue  it.  An  enterprising  citizen  might  erect 
the  standard  of  monarchy  in  a  State,  gather 
partisans  from  all  quarters,  extend  his  views 
from  State  to  State,  and  threaten  to  establish 
a  tyranny  over  the  whole,  and  the  general  gov- 
ernment remain  an  inactive  witness  of  its  own 
destruction."  A  war  of  words  might  be  allowed 
to  go  on,  but  upon  appeal  to  the  sword  the 
general  government  must  interpose,  however 
difficult  it  may  be.  Mr.  Carroll  thought  such 
an  authority  ought  to  be  desired  by  every 
State.  It  was  doubtful  if  the  existing  Con- 
federacy had  such  a  power.  After  some  fur- 
ther debate,  Mr.  Wilson  moved  as  a  substitute 
that  "  a  republican  form  of  government  shall  be 
guaranteed  to  each  State,  and  that  each  State 
shall  be  protected  against  foreign  and  domestic 
violence."  This  was  accepted  on  all  sides  and 
adopted  unanimously,  and  in  that  form  it  went 
to  the  Committee  of  Detail. 

It  was  reported  by  them  with  the  last  clause 
amended,  so  as  to  confine  the  absolute  guar- 
antee to  cases  of  "  foreign  invasion,"  and  re- 
quiring the  application  of  the  state  legislature 
before  intervening  "  against  domestic  violence." 

When  this  report  was  taken  up  the  word 
"  foreign  "  was  struck  out  as  superfluous,  "  in- 
vasion "  implying  it.  Mr.  Dickinson  moved  to 
strike  out  "  on  application  of  its  legislature." 


OTHER  SPECIAL  PROVISIONS  i8i 

He  thought  it  essential  to  the  general  tran- 
quillity that  the  United  States  should  in  all 
cases  suppress  domestic  violence ;  for  it  might 
proceed  even  from  the  legislature  itself,  or 
from  disputes  between  the  two  branches.  Mr. 
Dayton  cited  the  case  of  Rhode  Island  as 
showing  the  necessity  for  giving  ample  power 
to  the  United  States.  But  on  vote  this  prior 
application  was  retained,  eight  States  to  three. 
It  was  moved  to  substitute  "  insurrections  "  for 
"  domestic  violence,"  but  that  failed,  six  votes 
to  five.  On  motion  of  Mr.  Dickinson,  the 
words  "  or  executive "  were  inserted  after 
"legislature,"  so  that  action  might  be  taken 
on  his  application,  without  waiting  for  the 
legislature.  This  was  carried,  eight  States  to 
two,  with  Maryland  divided.  Mr.  Martin  would 
confine  the  application  of  the  executive  to  the 
recess  of  the  legislature.  But  only  his  own 
State  supported  him.  As  thus  amended  the 
guarantee  clause  was  passed  by  nine  States 
against  two.  It  was  afterwards  modified  by 
inserting  after  the  word  "  executive  "  the  paren- 
thetical clause,  "  when  the  legislature  cannot 
be  convened." 

But,  in  order  to  understand  the  purposes  of 
the  Convention  in  thus  limiting  the  guarantee 
against  domestic  violence  to  cases  of  a  demand 
for  protection  made  by  either  the  legislature 
or  the  governor  of  a  State,  attention  must  be 


i82     EVOLUTION   OF  THE  CONSTITUTION 

given  to  the  two  other  powers  vested  in  Con- 
gress by  the  Committee  of  Detail  in  the  same 
report:  "to  subdue  a  rebellion  in  any  State, 
on  the  application  of  its  legislature ; "  and  "  to 
call  forth  the  aid  of  the  militia,  in  order  to 
execute  the  laws  of  the  Union,  enforce  treaties, 
suppress  insurrections,  and  repel  invasions." 

Of  these  two  provisions  the  latter  subse- 
quently assumed  the  form  in  which  the  power 
was  given  to  Congress:  "to  provide  for  call- 
ing forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  inva- 
sions," and  was  thus  unanimously  adopted. 

When  the  other  power,  "to  subdue  rebel- 
lion," was  under  discussion,  Mr.  Pinckney  and 
Mr.  Morris  moved  to  strike  out  "  on  the  appli- 
cation of  its  legislature."  Mr.  Martin  opposed 
it,  saying,  "The  consent  of  the  State  ought 
to  precede  the  introduction  of  any  extraneous 
force  whatever."  It  was  proposed  to  extend 
the  application  to  the  governor.  Gouverneur 
Morris  said,  "  The  executive  may  possibly  be 
at  the  head  of  the  rebellion.  The  general 
government  should  enforce  obedience  in  all 
cases  where  it  may  be  necessary."  Mr.  Gerry 
was  against  "  letting  loose  the  myrmidons  of 
the  United  States  on  a  State,  without  its  own 
consent."  Mr.  Langdon  believed  that  the  ap- 
prehension of  the  United  States  force  would 
have  a  useful  effect  in  preventing   insurrec- 


OTHER  SPECIAL  PROVISIONS  183 

tions.  Gouverneur  Morris  remarked,  "  We  are 
acting  a  very  strange  part.  We  first  form  a 
strong  man  to  protect  us,  and  at  the  same 
time  wish  to  tie  his  hands  behind  him.  The  gen- 
eral legislature  may  surely  be  trusted  with  such 
a  power  to  preserve  the  public  tranquillity." 

It  was  then  agreed  that  the  United  States 
might  act  without  the  state  legislature  when  it 
could  not  meet,  by  five  States  to  three,  with  two 
divided.  On  motion  it  was  further  amended 
by  defining  the  "rebellion"  to  be  a  rebellion 
against  the  State.  "  There  might  be  a  rebel- 
lion against  the  United  States,"  said  Mr. 
Dickinson  and  Mr.  Madison.  This  provision 
had  no  relation  to  such  a  case.  The  whole 
clause  as  amended  was  then  rejected,  being 
sustained  by  four  votes  against  four,  and  two 
absent. 

Upon  recurrence  to  the  question,  presented 
in  connection  with  the  clause  guaranteeing  a 
republican  form  of  government  to  each  State, 
the  unconditional  protection  of  the  United 
States  was  guaranteed  only  against  invasion ; 
and  conditional  protection  against  "  domestic 
violence,"  if  required  by  the  legislature,  or  by 
the  governor  when  the  legislature  cannot  be 
convened. 

It  is  evident  that  this  last  protection  was 
intended  exclusively  for  the  cases  where  the 
violence  was  directed  against  the  state  action 


l84     EVOLUTION   OF  THE   CONSTITUTION 

or  authority,  and  by  its  own  citizens;  and 
therefore  the  necessity  for  national  interven- 
tion was  to  be  determined  by  that  state 
authority  which  was  offended  and  assailed. 
If  the  violence  was  offered  by  another  State,  or 
a  foreign  country,  it  became  "invasion,"  and 
not  "  domestic  violence ; "  and  then  the  guar- 
antee of  the  protection  of  the  United  States 
became  as  absolute  as  was  the  guarantee  of  a 
republican  form  of  government. 

For  the  rest,  for  the  case  of  illegal  or  violent 
offences,  insurrections,  and  invasions,  directed 
against  the  Union,  the  United  States  was  its 
own  absolute  judge  as  to  the  action  required, 
and  was  empowered  to  call  to  its  aid  the  militia 
of  all  the  States.  Power  to  this  end  was.  in- 
herent, also,  under  the  general  powers  to  pro- 
vide for  the  common  defence,  and  to  pass  all 
necessary  laws  to  give  effect  to  the  Constitution, 
which  with  its  laws  covered  all  the  territory  of 
the  Union.  The  national  life  and  authority 
given  by  the  Constitution  could  be  defended 
by  all  the  three  departments  which  it  estab- 
lished for  that  express  purpose,  —  the  legis- 
lative, the  executive,  and  the  judicial;  and  the 
means  were  left  to  its  own  discretion.  The 
fourth  section  of  Article  IV  was  designed  to 
enforce  and  regulate  its  duty  towards  a  State 
of  the  Union  only,  and  for  the  benefit  of  the 
State  exclusively. 


OTHER  SPECIAL  PROVISIONS  185 

MODE  OF  RATIFICATION  OF  THE  CONSTITUTION. 

When  the  subject  of  providing  state  con- 
ventions for  the  ratification  of  the  new  Con- 
stitution was  before  the  Convention,  as  found 
in  the  -Virginia  plan,  Mr.  Sherman  thought 
popular  ratification  unnecessary,  and  that  rati- 
fication by  Congress  and  the  state  legislatures 
would  be  sufficient. 

Mr.  Madison,  on  the  contrary,  held  it  essen- 
tial. He  added,  with  singular  foresight,  "  As 
far  as  the  Articles  of  Union  were  to  be  con- 
sidered as  a  treaty  only  of  a  particular  sort 
among  the  governments  of  independent  States, 
the  doctrine  might  be  set  up  that  a  breach  of 
any.  one  article  by  any  of  the  parties  absolved 
the  other  parties  from  the  whole  obligation." 
He  therefore  wanted  the  ratification  "  by  the 
supreme  authority  of  the  people  themselves." 

Mr.  Gerry  seemed  afraid  of  this  mode  for 
the  Eastern  States,  as  the  people  in  that  quar- 
ter had  "  the  wildest  ideas  of  government  in  the 
world.  They  were  for  abolishing  the  Senate  in 
Massachusetts  and  giving  all  the  other  powers 
of  government  to  the  other  branch  of  the  legis- 
lature." Mr.  King  thought  the  legislatures 
likely  to  be  hostile  to  the  new  system,  as  they 
would  lose  power  by  its  adoption.  Mr.  Wilson, 
with  characteristic  clearness  of  perception, 
desired    that  provision   should   be   made   for 


l86     EVOLUTION   OF  THE   CONSTITUTION 

giving  effect  ta  the  ratification  of  less  than  the 
whole  number  of  States,  so  that  the  govern- 
ment could  be  established  by  the  States  de- 
siring it,  leaving  the  door  open  to  the  others 
to  enter.  This  was  remembered  in  the  end, 
though  received  in  silence  at  the  time,  except 
that  Mr.  Pinckney  hoped  that,  if  not  unanimous, 
nine  States  might  undertake  the  new  system. 
Upon  taking  the  vote  in  committee  on  this 
question,  ratification  by  the  people  was  sus- 
tained by  the  votes  of  Massachusetts,  Penn- 
sylvania, Virginia,  North  Carolina,  South  Car- 
olina, and  Georgia  (6),  against  New  York, 
Connecticut,  New  Jersey  (3),  with  Maryland 
and  Delaware  divided. 

In  the  great  debate  which  followed  the  in- 
troduction of  the  New  Jersey  plan,  Mr.  Madi- 
son's prime  objection  to  it  was  that  "  its  ratifi- 
cation was  not  to  be  by  the  people  at  large.  It 
could  not,  therefore,  render  the  acts  of  Con- 
gress, in  pursuance  of  their  powers,  paramount 
to  the  acts  of  the  States."  It  is  worthy  of  note 
that  the  tenacity  of  the  adherence  of  the  fram- 
ers  of  the  Constitution  to  this  point  of  ratifica- 
tion by  the  people  arose  from  their  determina- 
tion to  take  from  the  corporate  States  all  power, 
or  pretence  of  power,  to  nullify  or  control  na- 
tional legislation  by  any  act  of  their  own  legis- 
latures. They  had  witnessed  this  nullification 
in  the  ruin  of  the  Confederacy.  Constitutional 


OTHER  SPECIAL  PROVISIONS  187 

history  can  be  correctly  read  only  in  the  light 
of  this  fixed  resolution  of  the  majority  of  the 
Convention.  Rufus  King,  in  a  critical  debate 
upon  the  last  hope  of  compromise,  said  he 
"  considered  the  proposed  government  as  sub- 
stantially and  formally  a  general  and  national 
government  over  the  people  of  America.  There 
will  never  be  a  case  in  which  it  will  act  as  a 
federal  government,  —  on  the  States,  and  not 
on  the  individual  citizens." 

When  the  provision  came  up  in  Conven- 
tion on  the  report  of  the  committee  of  the 
whole,  Mr.  Ellsworth,  seconded  by  Mr.  Pater- 
son,  moved  its  ratification  by  the  state  legisla- 
tures. Mr.  Mason  opposed  them,  asserting  that 
legislatures  were  not  sovereign,  they  were  crea- 
tures of  the  constitution  of  the  State ;  and  no 
such  power,  in  some  States  certainly,  was  con- 
ferred by  their  constitutions.  "  Whither,  then, 
must  we  resort  ?  To  the  people,  with  whom  all 
power  remains  that  has  not  been  given  up  in 
the  constitutions  derived  from  them.  It  was 
of  great  moment  that  this  doctrine  should  be 
cherished,  as  the  basis  of  free  government."  If 
referred  to  the  legislatures,  "  succeeding  legis- 
latures, having  equal  authority,  could  undo  the 
acts  of  their  predecessors."  Mr.  Randolph,  Mr. 
Gorham,  Dr.  Williamson,  Mr.  King,  Mr.  Madi- 
son, and  Gouverneur  Morris  opposed  the  mo- 
tion of  Mr.  Ellsworth.  Mr.  Madison  especially 


I88     EVOLUTION   OF  THE   CONSTITUTION 

made  the  point  that  the  difference  "  between  a 
system  founded  on  the  legislatures  only  and 
one  founded  on  the  people  was  the  true  differ- 
ence between  a  league  or  treaty  and  a  constitu- 
tion." He  added  that  judges  might  decide  for 
the  validity  of  a  law,  though  unwise  and  per- 
fidious, which  violated  a  treaty ;  but  a  law  vio- 
lating a  constitution  established  by  the  people 
themselves  would  be  considered  by  the  judges 
as  null  and  void.  By  the  law  of  nations  a 
breach  of  one  article  of  a  treaty  releases  the 
other  party  from  all  his  engagements.  Under 
a  constitution,  "  the  nature  of  the  pact  has  al- 
ways been  understood  to  exclude  such  an  in- 
terpretation." The  vote  was  then  taken,  and 
the  proposed  ratification  by  the  legislatures  was 
rejected  by  New  Hampshire,  Massachusetts, 
Pennsylvania,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia  (7),  against  Connecticut, 
Delaware,  and  Maryland  (3). 

Gouverneur  Morris  then  moved  there  should 
be  one  general  convention  for  its  considera- 
tion, amendment,  and  establishment;  but  he 
found  no  support  in  this.  And  on  the  question 
of  agreeing  to  the  clause  as  found  in  the  text, 
it  was  carried  by  all  the  States  against  Dela- 
ware only.  This  debate  and  decision  occurred 
on  the  23d  of  July. 

On  the  31st  of  August,  Gouverneur  Morris 
was  induced  to  move  that  the  choice  of  mode 


OTHER  SPECIAL   PROVISIONS  189 

of  ratification  be  left  to  the  States.  After  a 
debate,  in  which  his  opponents  insisted  upon 
this  resort  to  the  people,  "  to  first  principles," 
as  getting  over  all  difficulties,  the  motion  was 
defeated  by  six  States  against  Connecticut, 
Pennsylvania,  Maryland,  and  Delaware. 

The  number  of  States  required  to  ratify  it 
in  order  to  give  it  force  and  effect  between 
them  was  then  considered,  and  it  was  resolved 
to  take  the  same  number  nine,  to  which  they 
were  already  accustomed  under  the  Confed- 
eracy, as  giving  final  validity  to  their  acts. 
Maryland  alone  supported  the  motion  to  make 
the  number  thirteen  ;  Messrs.  Madison,  Wil- 
son, and  Clymer  desired  valid  ratification  by 
any  seven  or  more  States,  which  should  em- 
brace a  majority  of  the  people,  and  of  repre- 
sentatives in  the  first  branch  of  Congress. 
Mr.  Sherman  proposed  ten  States,  but  this 
was  supported  only  by  four  votes.  The  num- 
ber nine  was  accepted  by  eight  votes  to  three ; 
and  the  article  was  then  agreed  to  by  all  the 
States  except  Maryland,  whose  delegates  were 
embarrassed  by  a  clause  in  their  state  consti- 
tution. 

After  long,  fundamental,  and  exhaustive  de- 
bates, it  had  been  repeatedly  decided  that  this 
should  not  be  a  treaty,  a  league,  or  a  confed- 
eracy between  States;  and  as  often  decided 
that  it  should  be  a  constitution  of  the  people, 


190      EVOLUTION   OF  THE  CONSTITUTION 

organizing  them  into  one  common  and  gen- 
eral government  for  general  affairs,  wholly  in- 
dependent of  and  superior  to  state  govern- 
ments. Mr.  Wilson  as  early  as  June  20  had 
declared  his  opinion  that,  "in  spite  of  every 
precaution,  the  general  government  would  be 
in  perpetual  danger  of  encroachments  from 
the  state  governments."  Mr.  Madison  had 
followed  him  with  the  double  statement  that 
"  there  was  less  danger  of  encroachment  from 
the  general  government  than  from  the  state 
governments;  and,  further,  that  the  mischief 
from  encroachments  would  be  less  fatal  if 
made  by  the  former  than  if  made  by  the  lat- 
ter. All  the  examples  of  other  confederacies 
prove  the  greater  tendencies  in  such  systems 
to  anarchy  than  to  tyranny ;  to  disobedience  of 
the  members  than  usurpations  of  the  federal 
head.  Our  own  experience  had  fully  illustrated 
this  tendency."  "  The  people  would  not  be 
less  free  as  members  of  one  great  republic 
than  as  members  of  thirteen  small  ones.  A 
citizen  of  Delaware  was  not  more  free  than  a 
citizen  of  Virginia ;  nor  would  either  be  more 
free  than  a  citizen  of  America.  Supposing, 
therefore,  a  tendency  in  the  general  govern- 
ment to  absorb  the  state  governments,  no  fatal 
consequence  could  result." 

With  great  difficulty  the  members  of  the 
Convention    emerged    from    their    narrower 


OTHER  SPECIAL  PROVISIONS  191 

Views,  as  citizens  of  a  colonial  circumscription, 
into  the  greater  light  and  liberty  of  citizens 
of  a  great  republic,  destined  to  such  historic 
grandeur  that  none  in  presence  of  it  should 
longer  boast  of  his  local  attachments,  but 
should  rather  announce,  with  Roman  pride, 
that  he  was  an  American  citizen. 

OATHS    BY   STATE   OFFICERS   TO   SUPPORT   THE 
CONSTITUTION. 

One  important  provision  of  the  plan  intro- 
duced by  Mr.  Randolph  was  that  which  "  Re- 
solved, that  the  legislative,  executive,  and  ju- 
diciary powers  within  the  several  States  ought 
to  be  bound  by  oath  to  support  the  Articles 
of  Union."  It  provoked  objections  upon  its 
first  consideration,  and  was  postponed.  Upon 
its  recurrence,  Mr.  Sherman  declared  against 
it,  as  "  an  intrusion  into  the  state  jurisdiction." 
Mr.  Gerry  suggested  there  was  as  much  rea- 
son for  requiring  an  oath  of  fidelity  to  the 
States  from  national  officers  as  vice  versa. 
Luther  Martin  moved  to  strike  it  out.  Evi- 
dently there  still  lingered  the  idea  that  they 
were  only  creating  a  subordinate  —  at  most 
another  equal  —  State,  and  not  a  superior. 

Mr.  Randolph  sustained  it,  as  necessary  to 
prevent  competition  between  the  national  and 
state  constitutions  and  laws.  "  The  national 
authority  needs  every  support  we  can  give  it. 


192      EVOLUTION   OF   THE   CONSTITUTION 

Unless  the  state  executive  and  judiciary  be 
brought  under  some  tie  to  the  national  system, 
they  will  always  lean  too  much  to  the  state 
systems  whenever  a  contest  arises  between  the 
two." 

Connecticut,  New  Jersey,  Delaware,  and 
Maryland  (4)  voted  to  strike  it  out;  all  the 
other  States  (7)  sustained  the  provision.  Upon 
the  question  of  adopting  the  resolution  itself, 
New  York  joined  the  four  States  in  the  minor- 
ity, the  vote  in  its  favor  standing  six  to  five ; 
and  it  was  favorably  reported  to  the  Conven- 
tion. When  it  was  again  reached,  Mr.  Gerry's 
opinion  was  changed.  He  thought  at  least 
"  one  good  effect  would  be  produced  by  it. 
Hitherto,  the  officers  of  the  two  governments 
had  considered  them  as  distinct  from,  and  not 
as  parts  of,  the  general  system  ;  and  had,  in  all 
cases  of  interference,  given  a  preference  to  the 
state  governments.  The  proposed  oath  will 
cure  that  error."  Progress  had  been  made  in 
the  conception  of  a  national  government.  The 
resolution  was  adopted  without  further  dis- 
sent. 

When  the  clause  was  reported  from  the 
Committee  of  Detail,  on  Mr.  Charles  Cotes- 
worth  Pinckney's  motion  this  addition  was 
made :  "  but  no  religious  test  shall  ever  be  re- 
quired as  a  qualification  to  any  office  or  public 
trust  under  the  authority  of  the  United  States; " 


OTHER  SPECIAL  PROVISIONS  193 

and  "  afSrmation  "  was  permitted,  as  an  alter- 
native for  the  oath. 

After  the  report  by  the  Committee  of  Revi- 
sion, the  clause  was  adopted  in  the  following 
form :  "  The  senators  and  representatives  be- 
fore mentioned,  and  the  members  of  the  sev- 
eral state  legislatures,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and 
of  the  several  States,  shall  be  bound  by  oath, 
or  affirmation,  to  support  this  Constitution; 
but  no  religious  test  shall  ever  be  required  as 
a  qualification  to  any  office  or  public  trust 
under  the  United  States."  As  if  to  add  to  its 
significance  and  force,  it  immediately  follows 
the  clause  declaring  the  United  States  Consti- 
tution, laws,  and  treaties  "  the  supreme  law  of 
the  land."  By  this  association  of  all  state  and 
national  officers  in  one  universal  obligation, 
the  entire  political  organism  of  every  State  was 
brought  into  submission  to  the  national  Con- 
stitution and  government.  It  was  the  sanction 
of  an  indissoluble  allegiance  of  the  States  to 
the  nation,  throughout  the  whole  extent  of 
legitimate  national  jurisdiction. 

THE   SIGNATURE   AND   PUBLICATION   OF  THE 
CONSTITUTION. 

On  Saturday,  September  15,  several  last 
attempts  were  made  to  amend  the  final  draft, 
as  reported  by  the  Committee  of  Revision,  in 


194     EVOLUTION   OF  THE   CONSTITUTION 

respect  to  several  points  which  had  been  before 
seriously  debated.  It  was  especially  desired 
to  amend  the  fifth  article,  relating  to  future 
amendments  of  the  Constitution.  Among  oth- 
ers, it  was  proposed  to  add  a  proviso,  "  that  no 
State  shall,  without  its  consent,  be  affected  in 
its  internal  police,  or  deprived  of  its  equal  suf- 
frage in  the  Senate."  This  was  rejected  by  all 
the  States  except  Connecticut,  New  Jersey, 
and  Delaware.  Then  the  amendment  was 
offered  omitting  the  "  internal  police  "  clause, 
which  confined  it  to  the  preservation  of  equal 
suffrage  in  the  Senate ;  and  this  proviso  was 
adopted. 

The  majority  of  the  delegates  of  New  York 
had  seceded  from  the  Convention  in  July, 
Hamilton  alone  remaining;  and  he  could  not 
alone  commit  that  State  by  his  signature. 
Washington  had  fallen  into  deep  despondency 
over  the  secession  of  that  leading  State,  and 
had  written  to  Hamilton :  "  I  almost  despair 
of  seeing  a  favorable  issue  to  the  proceedings 
of  the  Convention,  and  do  therefore  repent 
having  any  agency  in  the  business."  But  he 
urged  Hamilton  to  remain  in  the  Convention 
and  to  continue  his  efforts ;  nor  did  he  himself 
quite  despair.  Happily,  most  of  the  remaining 
members  of  the  opposition,  although  reluc- 
tantly, surrendered  to  the  desire  for  formal 
unanimity. 


OTHER  SPECIAL  PROVISIONS  19S 

After  the  adoption  of  the  fifth  article,  the 
question  was  put  by  the  president,  Shall  the 
Constitution  as  amended  be  adopted  ?  It  was 
a  solemn  moment ;  and  there  were  not  a  few 
hesitating  minds.  All  the  States  present,  eleven 
in  number,  answered  in  the  affirmative.  It  was 
then  ordered  that  the  Constitution  should  be 
engrossed,  and  the  Convention  adjourned  until 
Monday. 

The  intervening  Sunday  was  a  day  of  anx- 
ious thought  and  consultation.  It  was  deemed 
of  great  importance  that  all  the  delegates  pre- 
sent should  sign  the  great  act,  that  it  might 
go  to  the  country  with  the  aspect  of  unanimity. 
It  was  thought  best  that  Dr.  Franklin,  the  ven- 
erable and  wise  moderator  of  opinions,  should 
make  this  conciliatory  effort. 

On  the  morning  of  Monday,  the  1 7th  of  Sep- 
tember, he  rose,  and,  because  of  his  infirmity, 
asked  Mr.  Wilson  to  read  the  observations  he 
wished  to  offer.  After  a  temperate  and  patri- 
otic appeal  for  unanimity,  he  proposed  a  form 
which  simply  certified  to  the  fact  of  record, 
that  it  was  "  done  in  Convention  by  the  unani- 
mous consent  of  the  States  present." 

As  a  further  proffer  of  conciliation,  and  to 
remove  one  objection  entertained  by  several 
delegates,  Mr.  Gorham  moved  to  increase  the 
possible  number  of  representatives  in  the  first 
branch  of  Congress  to  one  for  thirty  thousand, 


196     EVOLUTION    OF  THE   CONSTITUTION 

instead  of  the  ratio  of  forty  thousand  inhab- 
itants, and  was  supported  by  Mr.  King  and 
Mr.  Carroll.  But,  most  powerful  influence  of 
all,  General  Washington,  before  putting  the 
question,  and  with  a  modest  apology  for  offer- 
ing any  remarks,  expressed  the  satisfaction  he 
would  experience  if  it  should  be  adopted.  His 
voice  had  often  been  heard  in  private  conver- 
sation with  members  upon  the  great  topics  dis- 
cussed, but  never  before  from  the  tribune,  and 
now  its  potency  was  felt  by  all.  The  amend- 
ment was  accepted  unanimously. 

The  Constitution  was  then  enrolled,  in  order 
to  be  signed.  The  certificate  preceding  the 
signature  was  adopted  by  ten  States,  against 
South  Carolina  divided,  two  delegates  of  the 
latter  State  being  inclined  to  a  form  which 
more  strongly  expressed  their  consent  to  the 
Constitution.  Mr.  Hamilton,  strongly  opposed 
to  the  instrument  as  not  giving  enough  power 
to  the  national  government,  but  signing  it  in- 
dividually as  a  delegate  from  New  York,  was 
anxious  that  every  member  should  sign.  "  Is 
it  possible,"  said  he,  "  to  deliberate  between 
anarchy  and  convulsion  on  one  side,  and  the 
chance  of  good  to  be  expected  from  the  plan 
on  the  other?"  But  no  appeal  could  convert 
the  opposing  sentiments  of  Randolph,  Geiry, 
and  Mason.  These  three  only,  of  all  who  were 
present,  refused  to  put  their  names  to  that  con- 


OTHER  SPECIAL   PROVISIONS  197 

secrated  roll,  which  was  destined  to  a  glorious 
immortality  of  remembrance  among  their  coun- 
trymen, and  to  be  the  eternal  signal  of  an  epoch 
in  the  civilization  of  mankind.  Happy  were 
they  who  sacrificed  local  prejudice  and  jealous 
fears  to  the  welfare  of  the  greatest  number ; 
for  they  secured  to  themselves  a  fame  for  which 
kings  might  well  exchange  their  crowns,  —  a 
fame  which  shall  endure  till  the  monuments  of 
history  perish  from  the  earth. 

In  submitting  the  result  of  their  labors  to 
the  Congress  of  the  Confederation,  to  be  by 
them  communicated  to  the  several  States,  the 
Convention  accompanied  it  with  a  letter,  which 
briefly  recounted  the  difficulties  to  be  over- 
come, and  their  hopes  of  the  approval  of  their 
action.    They  said :  — 

"It  is  obviously  impracticable,  in  the  Fed- 
eral government  of  these  States,  to  secure  all 
rights  of  independent  sovereignty  to  each,  and 
yet  provide  for  the  interest  and  safety  of  all. 
Individuals  entering  into  society  must  give  up 
a  share  of  liberty  to  preserve  the  rest.  ...  In 
all  our  deliberations  on  this  subject  we  kept 
steadily  in  our  view  that  which  appeared  to  us 
the  greatest  interest  of  every  true  American, 
—  the  consolidation  of  the  Union,  —  in  which 
is  involved  our  prosperity,  felicity,  safety,  per- 
haps our  national  existence." 

This  letter  was  approved  by  the  Convention, 


198      EVOLUTION    OF   THE   CONSTITUTION 

signed  by  Washington,  and  with  the  Constitu- 
tion transmitted  to  the  Confederate  Congress, 
then  in  session  at  New  York. 

On  the  20th  of  September  these  communi- 
cations were  received  by  that  body,  and  for  the 
first  time  pubHshed  to  the  country.  The  Con- 
stitution was  assailed  at  once  on  many  sides, 
and  for  the  very  reasons  which  had  been  so 
fully  canvassed  and  overcome  in  the  Conven- 
tion. From  the  congressional  delegates  of  Vir- 
ginia and  from  New  York  came  the  bitterest 
hostility.  But  Madison  soon  appeared  in  his 
seat,  and  the  friends  of  the  Constitution  joined 
the  battle  with  courage  and  organization.  On 
the  28th  of  September  they  succeeded  in 
carrying  a  resolution  transmitting  the  docu- 
ments to  the  legislatures  of  the  several  States, 
in  order  to  be  submitted  to  conventions  in  the 
manner  resolved  by  the  national  Convention. 
The  great  contest  was  then  transferred  to  the 
separate  States,  where  its  fate  during  several 
anxious  months  was  suspended  in  a  doubtful 
balance. 


THE  ACTION  OF  THE  STATES    IN 
RATIFICATION 

The  question  came  first  before  each  legisla- 
ture whether  they  would  even  call  a  conven- 
tion. Second,  should  it  be  promptly  called  or 
deferred  to  await  the  action  of  other  States  ? 

Richard  Henry  Lee,  of  Virginia,  and  his 
confederates  in  different  States  were  indefati- 
gable in  disseminating  hostile  views  and  their 
plans  for  the  defeat  of  the  Constitution  through- 
out the  Confederacy.  Against  them,  most  for- 
tunately for  the  country  and  the  Union,  were 
arrayed  its  equally  indefatigable  friends.  Ham- 
ilton, Madison,  and  Jay  contributed  those  re- 
markable and  historical  commentaries  on  the 
proposed  Constitution  known  as  "The  Fed- 
eralist," and  now  preserved  as  part  of  the  his- 
tory of  the  nation.  The  entire  press  of  the 
country  was  engaged  on  the  two  sides.  The 
courage  and  violence  of  assault  on  one  side 
were  met  and  resisted  by  an  equal  bravery  and 
resolution  in  defence.  Above  all  leaders  on 
either  side  rose  the  great  and  revered  figure 
of  Washington,  who,  from  his  retreat  at  Mount 
Vernon,   expressed   his   patriotic   hopes   and 


200     EVOLUTION   OF  THE   CONSTITUTION 

wishes  in  numerous  communications,  which 
reached  and  influenced  the  controlling  char- 
acters in  many  States.  The  cry  of  the  nation- 
alists was,  "  Union  or  dissolution,  —  the  Con- 
stitution or  anarchy."  The  discussion  went  on 
in  every  corner  of  the  various  States,  in  private 
conversation  as  well  as  in  public  assemblies. 
The  inimical  effort  was  made  in  several  of  the 
States  to  declare  the  ratification  conditional 
upon  amendments  to  be  adopted ;  but  Madison 
gave  the  opinion  that  such  action  could  not 
be  construed  as  a  ratification.  It  must  be  un- 
conditional or  the  State  could  not  be  included 
in  the  Union.  The  influence  of  Monroe  — 
fortunately,  a  much  weaker  character  than 
Madison  —  was  cast  against  the  Constitution. 
Jefferson,  from  beyond  the  seas,  proposed  a 
cunning  measure  of  opposition  that  came  near 
proving  fatal  to  a  complete  union.  He  recom- 
mended the  adoption  of  the  Constitution  by 
nine  States  in  order  to  bring  it  into  existence, 
the  others  standing  out  until  proposed  amend- 
ments should  be  adopted.  This  evil  counsel 
produced  bad  fruits,  but  they  fortunately  failed 
to  ripen  into  the  threatened  results. 

Delaware,  least  of  the  sisterhood,  was  first 
to  decide.  With  joy  and  with  unanimity  her 
voice  was  given  for  ratification  on  December 

Pennsylvania  was  but  little  later.    Her  con- 


RATIFICATION   BY  THE   STATES  201 

vention  was  earlier  in  session,  but,  thwarted 
by  a  resolute  minority,  the  debate  was  pro- 
longed and  her  action  delayed.  On  the  nth 
of  December,  Wilson,  still  the  strong  cham- 
pion of  the  new  Union,  declared,  "  This  system 
is  not  a  compact ;  I  cannot  discern  the  least 
trace  of  a  compact;  the  introduction  to  the 
work  is  not  an  unmeaning  flourish.  The  sys- 
tem itself  tells  you  what  it  is,  —  an  ordinance, 
an  establishment  of  the  people."  By  a  vote  of 
forty-six  to  twenty-three  Pennsylvania  ratified 
the  Constitution  on  the  12th  of  December, 
1787. 

New  Jersey  next,  and  only  later  by  a  day, 
gave  her  ratification  to  the  Constitution  "  and 
every  part  thereof,"  with  unanimity  of  voices, 
on  December  13,  1787. 

Georgia  began  the  new  year  with  her  unani- 
mous assent,  given  on  the  2d  of  January, 
1788. 

Next  came  Connecticut,  whose  statesmen 
had  done  so  much  to  build  the  new  edifice, 
and  whose  judge,  the  learned  Johnson,  had 
presided  over  its  final  grace  of  form.  By  a 
vote  of  one  hundred  and  twenty-eight  to  forty 
this  State  gave  her  adherence  to  the  new  plan 
of  government  on  January  9,  i  ySS. 

Friends  and  enemies  alike  now  fixed  their 
eyes  on  Massachusetts,  the  State  next  to  Vir- 
ginia  the    most    important    of   those   whose 


202     EVOLUTION   OF   THE   CONSTITUTION 

action  was  awaited.  Her  delegate,  Elbridge 
Gerry,  had  refused  to  sign,  and  had  made  pub- 
lic his  reasons  therefor.  He  was  defeated  for 
the  state  convention  by  his  townsmen.  But 
elsewhere  strong  opponents  of  the  new  gov- 
ernment were  elected,  and  a  count  showed  its 
friends  to  be  in  a  minority.  By  wisdom  in 
action,  by  reason  in  debate,  and  chiefly  by  per- 
sonal influence  and  solicitation,  enough  votes 
were  won  over  in  the  end  to  secure  an  approval 
of  the  Constitution  by  a  vote  of  one  hundred 
and  eighty-seven  to  one  hundred  and  sixty- 
eight.  Massachusetts,  after  a  hard,  long,  and 
doubtful  struggle,  thus  brightened  the  hopes  of 
patriotic  Virginians  on  February  6,  1788. 

Maryland  lay  too  near  Virginia  to  escape 
the  infection  of  the  hostility  developed  in  that 
State  by  Richard  Henry  Lee,  Patrick  Henry, 
and  other  dissidents.  But  on  the  great  ques- 
tion her  people  were  sound  in  most  of  the 
counties.  The  number  elected  of  enemies  of 
the  new  Union  was  not  large,  but  their  oppo- 
sition was  very  bitter.  Her  convention  gave 
its  approval,  by  a  vote  of  sixty-three  to  eleven, 
on  the  26th  of  April,  1788. 

In  South  Carolina  the  seeds  of  Virginia  dis- 
content, and  of  a  possible  Southern  confeder- 
acy, had  been  widely  sown.  The  fruit  was  a 
persistent  opposition  offered  by  several  leaders 
of  public  opinion.    After  ten  days  of  contest 


RATIFICATION   BY  THE   STATES  203 

for  defeat  or  postponement  of  the  ratification, 
the  friends  of  the  Constitution  carried  the  day, 
by  a  vote  of  one  hundred  and  forty-nine  to 
seventy-three,  on  the  23d  of  May,  1788. 

One  State  more,  and  the  new  government 
could  be  inaugurated!  New  Hampshire  had 
modestly  awaited  the  action  of  larger  States. 
Now  the  ambition  of  her  unionists  was  to  sig- 
nalize their  State  by  completing  the  sanction 
of  the  Constitution.  This  was  done  while  the 
debate  was  still  prolonged  in  the  Virginia  Con- 
vention ;  and  New  Hampshire  became  the 
ninth  State,  by  a  vote  of  fifty-seven  to  forty-six, 
on  June  21,  1788. 

In  Virginia  there  was  a  contest  of  the  great- 
est obstinacy,  with  few,  if  any  neutrals.  Henry, 
Grayson,  and  Mason  led  the  hostile  forces. 
Madison,  Pendleton,  Marshall,  and  Randolph 
(now  reconciled)  confronted  them  at  every 
point  in  defence  of  the  Constitution.  Patrick 
Henry  sounded  the  trumpet  of  state  sover- 
eignty with  the  cry,  "  The  Constitution  is  the 
severance  of  the  Confederacy.  Its  language, 
'  we,  the  people,'  is  the  institution  of  one  great 
consolidated  national  government  of  the  people 
of  all  the  States,  instead  of  a  government  by 
compact  with  the  States  for  its  agents."  Pen- 
dleton rallied  the  unionists  to  the  cry,  "  Who 
but  the  people  can  delegate  powers,  or  have  a 
right  to  form  government?  There  is  no  quarrel 


204     EVOLUTION   OF  THE   CONSTITUTION 

between  government  and  liberty:  the  former 
is  the  shield  and  protector  of  the  latter.  The 
question  must  be  between  this  government  and 
the  Confederation,  which  is  no  government  at 
all.  This  is  to  be  a  government  of  laws,  and 
not  of  men."  From  the  second  day  of  June 
the  war  was  raged  at  Richmond  with  alternate 
hopes  and  fears.  Finally,  having  by  her  delay 
yielded  to  New  Hampshire  the  honor  of  that 
conclusive  sanction  which  the  ninth  State  could 
give  to  the  new  Union  which  she  herself  ini- 
tiated, Virginia,  by  a  vote  of  eighty-nine  to 
seventy-nine,  ratified  it,  being  the  tenth  State, 
on  June  25,  1788. 

The  friends  of  the  Constitution  awaited  the 
action  of  the  remaining  States  with  less  anxi- 
ety, now  that  the  three  outstanding  States  were 
wholly  separated  from  each  other,  and  whether 
single  or  confederated  would  be  powerless 
against  the  Union.  The  convention  of  New 
York  met  while  that  of  Virginia  was  still  in  the 
throes  of  the  great  debate.  There  had  been 
a  certain  concert  of  action,  through  Richard 
Henry  Lee  and  Governor  Clinton,  of  the  ene- 
mies of  the  Union  in  the  two  States.  Clinton 
organized  and  led  them  in  the  convention  of 
New  York,  and  was  chosen  its  president,  and 
had  the  aid  of  the  two  seceders,  Yates  and 
Lansing.  The  friends  of  the  Constitution  had 
the  benefit  of  the  great  ability  of  Hamilton,  Jay, 


RATIFICATION   BY  THE   STATES  205 

and  Chancellor  Livingston.  On  the  eighth  day 
of  their  session  the  news  arrived  that  New 
Hampshire  had  given  the  requisite  vitality  to 
the  Constitution.  Nine  days  later  came  the  re- 
port that  Virginia  had  joined  the  Union.  The 
courage  of  the  anti-unionists,  who  formed  the 
majority,  was  broken.  They  sought  a  digni- 
fied retreat,  as  in  Virginia  and  Massachusetts, 
through  propositions  of  future  amendment. 
One  of  them  even  proposed  to  ratify,  reserving 
the  right  to  secede  if  the  amendments  should 
fail.  Against  this  Hamilton  spoke  with  such 
force  that  the  mover  himself  abandoned  it. 
But  Lansing  in  substance  renewed  it.  Then 
Hamilton  read  the  opinion  of  Madison,  just 
received,  that  such  a  condition  would  vitiate 
the  ratification,  affirming  that  "  the  Constitu- 
tion requires  an  adoption  in  toto,  2ind  forever y' 
thus  early  crushing  the  theory  of  secession. 
Then  the  conditional  propositions  came  to  an 
end,  and  a  legal  form  of  ratification  was  agreed 
to  (there  being  some  absentees),  by  a  vote  of 
thirty  to  twenty-seven,  on  July  26,  1788. 

There  remained  North  Carolina,  which  had 
in  August,  1778,  refused  to  ratify  prior  to 
amendment.  She  gave  up  her  opposition  to 
the  Constitution  only  after  the  organization 
of  the  new  government,  dating  its  ratification 
from  the  21st  of  November,  1789.  Rhode 
Island  lingered  without  until  May  29,  1790. 


2o6     EVOLUTION   OF  THE   CONSTITUTION 

At  last  the  sun  was  risen  in  the  heavens,  the 
clouds  were  dissipated,  and  all  the  planets  were 
moving  in  their  respective  orbits,  their  centrifu- 
gal impulses  balanced  by  the  attractive  bonds 
of  the  powerful  central  luminary,  which  shed 
upon  them  light  and  warmth  and  force. 


XI 

SEQUEL  OF  AMENDMENTS 

Time  was  required  for  both  States  and  peo- 
ple to  adjust  their  opinions  and  their  affairs 
to  the  new  institutions  of  government.  The 
majority  in  some  of  the  conventions  had  not 
been  fully  convinced  either  as  to  the  extent  of 
the  powers  surrendered  by  the  States  and  ac- 
quired by  Congress  and  the  Judiciary  or  of 
the  security  of  each  State  and  its  citizens  in  the 
exercise  of  rights  not  conceded  to  the  Union. 
Sources  of  revenue  hitherto  enjoyed  by  the 
States  were  to  be  given  up,  and  new  sources 
must  be  found.  What  new  laws  would  be 
passed  by  this  new  legislature  in  which  the 
citizens  of  each  State  had  so  small  a  share  of 
authority  ?  How  should  they  grow  to  recognize 
other  States  as  their  sisters  and  their  citizens 
as  brothers  ?  How  soon  would  selfishness  give 
way  to  equality  and  fraternity?  Would  the 
habit  of  affection  for  one's  own  State  ever  permit 
the  growth  of  a  superior  affection  for  the  union 
of  all  the  States  ?  Which  of  the  two  forces,  cen- 
trifugal or  centripetal,  was  destined  to  predomi- 
nate in  the  future  ?  The  azure  sky  of  patriotic 
hope  was  not  without  its  auguries  of  fear. 


2o8     EVOLUTION   OF  THE   CONSTITUTION 

The  action  of  the  conventions  of  such  im- 
portant States  as  Massachusetts,  Virginia,  and 
New  York  in  recommending  certain  amend- 
ments to  the  new  Constitution,  which  had  also 
the  concurrence  of  other  States,  rendered  their 
early  consideration  desirable  in  the  interest  of 
harmony  and  contentm'ent  among  the  people, 
now  directly  charged  with  the  national  govern- 
ment. 

The  first  national  Congress,  therefore,  pro- 
posed to  the  several  States  twelve  amendments 
to  the  Constitution,  covering  the  points  appear- 
ing to  be  most  reasonably  insisted  upon  by  the 
States.  The  first  of  these  proposed  to  control 
in  a  different  manner  the  number  of  repre- 
sentatives in  the  first  branch  of  Congress.  The 
second  proposed  that  no  law  varying  the 
compensation  of  senators  and  representatives 
should  have  effect  until  after  a  succeeding 
election.  Neither  of  these  was  ratified  by  a 
sufficient  number  of  States  to  give  it  validity. 

The  remaining  amendments,  being  now  the 
first  ten  articles  of  amendment  appended  to  the 
Constitution,  and  held  to  be  limitations  upon 
possible  claims  of  power  by  the  national  govern- 
ment, were  ratified  by  ten  States.  No  returns 
were  made  by  the  States  of  Massachusetts, 
Connecticut,  or  Georgia  of  their  action  on 
them. 

The  eleventh  article  of  amendment  was  pro- 


SEQUEL  OF  AMENDMENTS  209 

posed  at  the  first  session  of  the  Third  Congress 
(i793)»  ii^  order  to  surely  exempt  States  from 
liability  to  suits  in  the  United  States  courts 
brought  by  citizens  of  any  other  State,  or  by 
foreigners.  The  returns  of  state  action  upon 
this  subject  were  so  dilatory  that  Congress 
pas.sed  a  resolution  in  March,  1797,  requesting 
the  President  to  communicate  with  the  eight 
outstanding  States  on  the  subject.  From  the 
message  of  President  Adams  (January,  1798) 
it  appears  that  twelve  of  the  sixteen  States  had 
at  that  time  certified  their  ratification,  which  es- 
tablished the  validity  of  the  amendment.  New 
Jersey  and  Pennsylvania  refused  their  ratifica- 
tion, while  South  Carolina  and  Tennessee  had 
not  acted  upon  it. 

The  twelfth  amendment,  establishing  the 
present  mode  of  electing  the  President  and 
Vice-President,  was  proposed  at  the  first  session 
of  the  Eighth  Congress  (1803),  and  was  declared 
adopted  in  September,  1804,  by  the  votes  of 
thirteen  out  of  seventeen  States,  being  three 
fourths  thereof. 

The  thirteenth,  fourteenth,  and  fifteenth 
amendments  had  their  origin  in  questions  aris- 
ing from  the  late  war  of  secession.  The  thir- 
teenth had  for  its  object  the  perpetual  aboli- 
tion of  slavery.  The  fourteenth  established 
the  equality  of  citizenship  in  all  the  States,  and 
prohibited  every  State  from  abridging  the  privi- 


210     EVOLUTION   OF  THE   CONSTITUTION 

leges  of  citizens  of  the  United  States,  and  from 
denying  to  them  the  equal  protection  of  the  laws, 
and  from  taking  life,  liberty,  or  property  without 
due  process  of  law.  It  also  provided  for  a  reduc- 
tion of  representation  in  Congress  proportioned 
to  the  unjust  exclusion  of  any  class  of  citizens 
from  the  right  of  voting ;  and  excluded  from 
holding  office  under  the  United  States,  or  any 
State,  certain  classes  of  men  who  had  been  en- 
gaged in  the  Rebellion,  unless  first  relieved  of 
disability  by  a  vote  of  two  thirds  of  each  branch 
of  Congress.  It  further  provided  a  constitu- 
tional guarantee  of  the  validity  of  the  public 
debt  of  the  United  States,  and  prohibited  to 
every  State,  as  well  as  to  the  United  States, 
the  assumption  of  any  debt  or  obligation  in- 
curred in  aid  of  insurrection  or  rebellion,  and 
the  recognition  of  any  claim  for  slaves  lost 
or  emancipated.  The  fifteenth  prohibited  the 
abridgment  or  denial  of  the  right  to  vote  of  cit- 
izens of  the  United  States  on  account  of  race, 
color,  or  previous  condition  of  servitude.  Full 
power  was  expressly  given  to  Congress  to  en- 
force these  several  amendments  by  legislation. 
All  these  last  articles  had  for  their  per- 
manent object  the  establishment  of  universal 
personal  liberty,  and  the  fundamental  rights  of 
citizenship  everywhere  within  the  Union.  The 
ratification  of  the  thirteenth  article  was  pro- 
posed by  Congress  February  i,  1865,  and  was 


SEQUEL  OF  AMENDMENTS  211 

proclaimed  on  the  i8th  of  December,  1865  ;  of 
the  fourteenth  was  proposed  June  16,  1866, 
and  proclaimed  on  the  28th  of  July,  1868;  of 
the  fifteenth  was  proposed  February  27,  1869, 
and  proclaimed  on  the  30th  of  March,  1870. 

The  foregoing  fifteen  articles  of  amendment 
are  the  only  modifications  of  the  work  finished 
on  the  17th  of  September,  1787,  of  the  propri- 
ety of  which,  time,  events,  and  argument  have 
convinced  the  American  people.  The  first  ten 
articles  were  not  so  much  amendments  of  con- 
stitutional provisions  as  they  were  a  declara- 
tion of  ungranted  rights  which  the  national 
government  did  not  claim.  The  eleventh  settled 
in  favor  of  the  States  a  question  of  their  sua- 
bility in  court  which  had  been  debatable.  The 
tide  of  constitutional  opinion  had  thus  far 
flowed  towards  the  rights  of  the  States,  and 
they  were  satisfied. 

In  later  years,  some  of  the  States  began  to 
assert  rights  of  separate  and  final  judgment 
against  the  supremacy  of  acts  of  Congress  and 
of  the  national  courts,  which  were  inconsistent 
with  the  intention  of  the  Constitution  and  of 
its  founders.  The  tide  of  public  opinion  turned 
with  the  exposure  of  the  new  dangers  threaten- 
ing national  institutions,  and  flowed  strongly 
towards  the  further  protection  of  that  Union 
which,  as  Madison  had  advised  New  York,  was 
indissoluble.  Under  this  impulse  the  last  three 


212     EVOLUTION   OF  THE   CONSTITUTION 

articles  were  adopted,  in  order  to  put  new  pow- 
ers into  the  hands  of  the  common  government, 
and  to  place  the  most  important  rights  of  per- 
sonal liberty  and  of  American  citizenship  under 
the  protection  of  the  national  shield.  This  was 
a  work  impossible  to  the  fathers  by  reason  of 
slavery;  and  was  only  accomplished  by  their 
descendants  at  the  cost  of  vast  treasure  and 
richer  blood. 

The  passing  generation  of  men  may  there- 
fore proudly  claim  to  have  added  something  to 
the  rich  legacy  which  our  ancestors  bequeathed 
a  hundred  years  ago.  Let  us  hope  that  as  cen- 
tury shall  follow  century  into  the  unmeasured 
flood  of  time,  the  uncounted  millions  who  shall 
inherit  this  Western  World  will  maintain  their 
allegiance  to  the  Constitution  and  Union  with 
equal  zeal,  and  with  all  the  support  of  heart 
and  tongue  and  sword. 

'*  Thy  sun  is  risen,  and  shall  not  set 
Upon  thy  day  divine  ! 
Ages  of  unborn  ages  yet, 
America,  are  thine !  ** 


APPENDIX 


APPENDIX 

Congressional  Calls  on  the  President  for  Papers 
AND  Information 

The  right  of  either  House  of  Congress,  or  of  both  Houses 
concurrently,  to  call  on  the  President  for  papers  or  other 
specific  official  information,  is  not  provided  for  by  the 
Constitution.  It  does  not  appear  to  have  been  discussed 
in  the  Convention.  The  only  constitutional  provision 
even  remotely  relating  to  the  subject  simply  declares  that 
the  President  "  shall  from  time  to  time  give  to  the  Con- 
gress information  of  the  state  of  the  Union." 

Nevertheless,  each  House  has  at  different  times  made 
such  demands  upon  the  Executive,  and  the  constitutional 
duty  of  the  President  in  respect  to  such  calls  has  been  the 
subject  of  discussion.  In  most  cases  of  the  exercise  of  this 
claim  for  information  the  Executive  has  yielded,  because  it 
was  for  legitimate  objects  and  in  the  ordinary  course  of 
legislative  proceeding.  But  at  other  times  it  has  proceeded 
from  mere  political  hostility,  and  had  for  its  object  to  pro- 
vide means  for  party  assaults  upon  the  Administration  or 
its  policy,  irrespective  of  the  public  interests  involved.  In 
cases  of  the  latter  kind,  and  even  in  other  cases  where  the 
Executive  has  complied  with  the  demand,  he  has  been 
careful  to  assert  his  constitutional  right  of  independent 
decision,  and  to  refuse  compliance  in  his  official  discretion. 

The  question  first  arose  during  the  presidency  of  Wash- 
ington. In  March,  1796,  the  House  of  Representatives 
called  on  the  President  for  instructions  given  to  the  United 
States  Minister  preliminary  to  Jay's  Treaty,  which  had 
been  already  ratified,  "  except  such  as  any  existing  nego- 
tiation may  render  improper  to  be  disclosed."    Madison 


2i6  APPENDIX 

proposed  a  further  exception  of  "  such  as  were  inconsist- 
ent with  the  interest  of  the  United  States  to  disclose." 
Madison's  amendment  was  rejected  by  a  majority  of  lo 
votes.  The  House  on  March  24  passed  the  Resolution  by 
a  vote  of  62  to  37. 

On  the  30th  of  March  Washington  responded  by  a 
Message  of  refusal.  Among  his  reasons  he  declared  that 
"  as  it  is  essential  to  the  due  administration  of  the  govern- 
ment that  the  boundaries  fixed  by  the  Constitution  between 
the  different  departments  should  be  preserved,  a  just 
regard  to  the  Constitution  and  to  the  duty  of  my  office, 
under  all  the  circumstances  of  this  case,  forbids  a  compli- 
ance with  your  request ; "  and  he  added  the  following 
argument :  — 

"Having  been  a  member  of  the  General  Convention 
and  knowing  the  principles  on  which  the  Constitution  was 
formed,  I  have  ever  entertained  but  one  opinion  on  this 
subject  ;  and  from  the  first  establishment  of  the  govern- 
ment to  this  moment  my  conduct  has  exemplified  that 
opinion  —  that  the  power  of  making  treaties  is  exclusively 
vested  in  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  provided  two  thirds  of  the  senators 
present  concur  ;  and  that  every  treaty  so  made  and  pro- 
mulgated thenceforward  became  the  law  of  the  land.  It  is 
thus  that  the  treaty-making  power  has  been  understood  by 
foreign  nations,  and  in  all  the  treaties  made  with  them  we 
have  declared  and  they  have  believed  that,  when  ratified 
by  the  President,  with  the  advice  and  consent  of  the  Sen- 
ate, they  became  obligatory.  In  this  construction  of  the 
Constitution  every  House  of  Representatives  has  hereto- 
fore acquiesced ;  and  until  the  present  time  not  a  doubt 
or  suspicion  has  appeared,  to  my  knowledge,  that  this 
construction  was  not  a  true  one.  Nay,  they  have  more 
than  acquiesced ;  for  till  now,  without  controverting  the 
obligation  of  such  treaties,  they  have  made  all  the  requisite 
provisions  for  carrying  them  into  effect. 


APPENDIX  217 

"  There  is  also  reason  to  believe  that  this  construction 
agrees  with  the  opinions  entertained  by  the  state  conven- 
tions when  they  were  deliberating  on  the  Constitution, 
especially  by  those  who  objected  to  it  because  there  was 
not  required  in  commercial  treaties  the  consent  of  two 
thirds  of  the  whole  number  of  the  members  of  the  Senate 
instead  of  two  thirds  of  the  senators  present,  and  because 
in  treaties  respecting  territorial  and  certain  other  rights 
and  claims  the  concurrence  of  three  fourths  of  the  whole 
number  of  the  members  of  both  Houses,  respectively,  was 
not  made  necessary." 

"  If  other  proofs  than  these  and  the  plain  letter  of  the 
Constitution  itself  be  necessary  to  ascertain  the  point 
under  consideration,  they  may  be  found  in  the  journals  of 
the  General  Convention,  which  I  have  deposited  in  the 
office  of  the  Department  of  State.  In  those  journals  it 
will  appear  that  a  proposition  was  made  *  that  no  treaty 
should  be  binding  on  the  United  States  which  was  not 
ratified  by  a  law '  and  that  the  proposition  was  explicitly 
rejected." 

President  Monroe  was  called  upon  by  a  Resolution  of 
the  House  of  Representatives,  January  4,  1825,  for  docu- 
ments relating  to  the  conduct  of  naval  officers  and  other 
public  agents  in  South  America.  He  replied  by  Message 
of  January  10,  1825,  declining  compliance  with  it  as  in- 
consistent with  the  public  interest. 

The  Senate,  on  the  nth  of  December,  1833,  on  motion 
of  Mr.  Clay  and  by  a  vote  of  23  to  18,  called  upon  Presi- 
dent Jackson  to  communicate  to  the  Senate  "  a  copy  of 
the  paper  which  has  been  published  "  over  his  signature 
and  which  related  to  the  removal  of  the  deposits  from  the 
United  States  Bank. 

In  his  Message  of  refusal  Jackson  declared  the  Execu- 
tive to  be  "  a  coordinate  and  independent  branch  of  the 
government  equally  with  the  Senate,"  etc.,  etc.  He  added 
the  following  declaration:  "Knowing  the  constitutional 


2i8  APPENDIX 

rights  of  the  Senate,  I  shall  be  the  last  man  under  any 
circumstances  to  interfere  with  them.  Knowing  those  of 
the  Executive,  I  shall  at  all  times  endeavor  to  maintain 
them  agreeably  to  the  provisions  of  the  Constitution 
and  to  the  solemn  oath  I  have  taken  to  support  and 
defend  it. 

"  I  am  constrained,  therefore,  by  a  proper  sense  of  my 
own  self-respect  and  of  the  rights  secured  by  the  Con- 
stitution to  the  executive  branch  of  the  government  to 
decline  a  compliance  with  your  request." 

The  Senate,  on  the  12th  of  June,  1834,  called  on  Presi- 
dent Jackson  to  transmit  to  the  Senate  an  official  com- 
munication from  him  to  Andrew  Stevenson  relating  to  his 
nomination  as  E.  E.  and  M.  P.  to  Great  Britain.  The  Pre- 
sident replied  June  13,  as  follows  :  — 

"  As  a  compliance  with  this  Resolution  might  be  deemed 
an  admission  of  the  right  of  the  Senate  to  call  upon  the 
President  for  confidential  correspondence  of  this  descrip)- 
tion,  I  consider  it  proper  on  this  occasion  to  remark  that 
I  do  not  acknowledge  such  a  right;  but  to  avoid  mis- 
representation I  herewith  transmit  a  copy  of  the  paper  in 
question." 

President  Jackson  also  Qanuary  6,  1835)  refused  com- 
pliance with  a  Resolution  of  the  House  of  Representa- 
tives demanding  certain  information. 

He  asserted  the  right  of  the  Executive  to  refuse  com- 
pliance with  a  demand  of  the  Senate  for  copy  of  an  official 
report,  as  found  in  his  Message  of  January  13,  1835. 

But  for  a  complete  exposition  of  President  Jackson's 
views  on  the  subject,  see  his  Message  of  February  10, 
183s,  to  the  Senate,  in  which  among  other  emphatic  de- 
clarations is  found  the  following :  — 

"  This  is  another  of  those  calls  for  information  made 
upon  me  by  the  Senate  which  have,  in  my  judgment, 
either  related  to  the  subjects  exclusively  belonging  to  the 
Executive  Department  or  otherwise  encroached  on  the 


APPENDIX  219 

constitutional  powers  of  the  Executive.  Without  conced- 
ing the  right  of  the  Senate  to  make  either  of  these  requests, 
I  have  yet,  for  the  various  reasons  heretofore  assigned  in 
my  several  replies,  deemed  it  expedient  to  comply  with 
several  of  them.  It  is  now,  however,  my  solemn  convic- 
tion, that  I  ought  no  longer,  from  any  motive  nor  in  any 
degree  to  yield  to  these  unconstitutional  demands.  Their 
continued  repetition  imposes  on  me,  as  the  representa- 
tive and  trustee  of  the  American  people,  the  painful  but 
imperious  duty  of  resisting  to  the  utmost  any  further 
encroachment  on  the  rights  of  the  Executive." 

In  March,  1848,  President  Tyler  answered  a  request 
by  the  House  of  Representatives  addressed  to  the  Presi- 
dent and  heads  of  the  several  departments  for  certain 
information  by  a  refusal,  it  not  being  "  consistent  with  the 
rights  and  duties  of  the  Executive  Department."  He  said 
in  his  Message,  "  It  becomes  me,  in  defence  of  the  Con- 
stitution and  laws  of  the  United  States,  to  protect  the 
Executive  Department  from  all  encroachments  on  its 
powers,  rights,  and  duties." 

On  January  31,  1843,  he  again  refused  compliance  with 
the  Resolution  of  the  House  requesting  certain  reports, 
and  reasserted  the  constitutional  discretion  of  the  Execu- 
tive in  such  cases ;  and  again  in  February,  while  granting 
the  request  of  the  House  of  Representatives,  he  reserved 
the  like  discretion. 

President  Polk,  in  March,  1845,  courteously  denied 
the  request  of  the  Senate  for  certain  information  touching 
the  President's  action  respecting  the  annexation  of  Texas. 
He  also  in  January,  1848,  denied  a  request  from  the 
House  for  certain  instructions  given  to  Officers  of  the 
Army  or  Navy  of  the  United  States,  concluding  his  Mes- 
sage in  the  following  words :  "  I  regard  it  to  be  my  con- 
stitutional right  and  my  solemn  duty  under  the  circum- 
stances of  this  case  to  decline  a  compliance  with  the 
request  of  the  House  contained  in  their  Resolution." 


220  APPENDIX 

President  Fillmore  on  several  occasions  also  declined 
the  requests  of  the  Senate. 

President  Cleveland,  in  his  Message  of  March  i,  1886, 
against  the  numerous  requests  and  demands  of  the  Sen- 
ate upon  the  different  departments  of  the  government  for 
information  and  documents,  says  :  — 

"  My  oath  to  support  and  defend  the  Constitution,  my 
duty  to  the  people  who  have  chosen  me  to  execute  the 
powers  of  their  great  office  and  not  to  relinquish  them, 
and  my  duty  to  the  Chief  Magistracy,  which  I  must  pre- 
serve unimpaired  in  all  its  dignity  and  vigor,  compel  me 
to  refuse  compliance  with  these  demands." 

On  the  1 6th  of  May,  1896,  the  Senate  called  on  Presi- 
dent Cleveland  for  certain  correspondence,  a  portion  of 
which  he  transmitted ;  as  to  the  remainder,  he  said  :  — 

"It  being,  in  my  judgment,  incompatible  with  the 
public  service,  I  am  constrained  to  refrain  from  com- 
municating to  the  Senate  at  this  time  copies  of  the  cor- 
respondence described  in  the  third  paragraph  of  said 
Resolution.'* 

From  the  foregoing  illustrations  it  appears  that  the 
Constitution  has  been  practically  interpreted  in  a  manner 
to  exclude  any  right  in  either  House  to  dictate  the  action 
of  the  Executive  in  this  respect.  Hence  the  request  by 
either  House,  addressed  to  the  President  or  to  any  Ex- 
ecutive Department,  for  information  should  never  be  in 
the  form  of  an  order^  direction^  or  instruction^  unless  it  be 
a  duty  imposed  by  some  express  law. 


^f^  THE 
OF 


v^x^^^  ^:^^  ^'^^  ^r^^^^r-z: 


HISTORY  OF  THE   MONROE 
DOCTRINE 


THE   HISTORY  OF  THE   MONROE 
DECLARATION  OF   1823 

In  every  conflict  of  European  with  American 
territorial  possession  on  the  two  western  con- 
tinents, our  countrymen  make  their  appeal  to 
the  Monroe  Doctrine.  It  is  quoted  as  the  su- 
preme, indisputable,  and  irreversible  judgment 
of  our  national  Union.  Among  the  very  few 
political  maxims  which  serve  to  guide  public 
opinion  in  our  country,  this  ranks  as  the  chief. 
Aside  from  the  traditions  which  preserve  our 
neutrality  in  foreign  wars  and  complications, 
and  extend  equality  of  commercial  advantages 
to  all  iriendly  nations  in  their  intercourse  with 
us,  it  may  be  said  to  indicate  the  only  estab- 
lished idea  of  foreign  policy  which  has  a  per- 
manent influence  upon  our  national  adminis- 
tration. It  has  also  taken  fast  hold  on  the 
popular  mind.  A  President  of  the  United 
States,  justly  appealing  to  it  in  an  emergency, 
could  not  fail  of  unanimous  following  of  pa- 
triotic citizens,  even  in  presence  of  a  conse- 
quently impending  war.  It  touches  the  instinct 
of  national  safety,  and  of  pride  in  our  national 
institutions.   A  sagacious   observer  of  public 


224  THE   MONROE   DOCTRINE 

opinion  will  not  fail  to  mark  how  a  simple 
appeal  to  this  "  doctrine,"  in  a  given  case,  holds 
the  general  judgment  in  suspense  until  it  is 
clear  whether  its  principles  are  involved.  If 
that  question  is  affirmatively  solved,  the  judg- 
ment becomes  resolute  and  unchangeable. 

In  presence  of  this  powerful  sentiment,  sway- 
ing a  great  people  as  well  as  their  government, 
it  is  not  surprising  that  the  application  of  the 
declaration  often  comes  into  discussion  on  the 
floor  of  Congress  and  in  the  press.  It  becomes 
more  and  more  important  that  it  should  be 
understood,  in  respect  to  its  origin  and  pur- 
pose. When  legitimately  directed,  Europe  can 
never  complain  of  surprise  or  wrong,  for  her 
governments  have  had  notice  of  it  from  the 
United  States  for  more  than  three  quarters  of 
a  century.  Indeed,  its  origin  partially,  and  its 
occasion  wholly,  were  in  Europe.  While  it  has 
never  received  express  legislative  sanction  at 
Washington,  this  is  in  no  degree  to  be  attrib- 
uted to  failure  of  approval.  It  has  been  the 
natural  consequence  of  a  desire,  on  the  part  of 
Congress,  to  refrain  from  committing  itself  — 
in  an  academic  sense,  merely  —  to  a  general 
declaration.  They  preferred  to  leave  the  initia- 
tive of  its  application,  in  any  complication  of 
circumstances,  to  the  executive  organ  constitu- 
tionally charged  with  the  conduct  of  foreign 
relations,  while  themselves  retained  their  con- 


THE   MONROE   DOCTRINE  225 

stitutional  function  of  enforcing  it,  in  their  ulti- 
mate discretion,  by  a  declaration  of  war. 

So  early  as  January,  181 1,  President  Madi- 
son communicated  to  Congress  some  corre- 
spondence indicating  an  intention  on  the  part 
of  Great  Britain  to  acquire  possession  of  cer- 
tain territory  claimed  as  a  part  of  Spanish 
Florida,  and  situated  on  our  southern  bound- 
ary. 

In  his  accompanying  message  he  said :  "  I 
recommend  to  the  consideration  of  Congress 
the  seasonableness  of  a  declaration  that  the 
United  States  could  not  see  without  serious 
disquietude  any  part  of  the  neighboring  terri- 
tory in  which  they  have  in  different  respects 
so  deep  and  so  just  a  concern  pass  from  the 
hands  of  Spain  into  those  of  any  other  foreign 
power." 

This  recommendation  was  made  twelve  years 
before  the  Declaration  of  Monroe,  and  was  sug- 
gested by  the  menace  to  our  national  safety  if 
another  European  power  should  obtain  new 
possessions  of  territory  upon  our  borders.  It 
received  the  sanction  of  Congress  at  the  same 
session. 

But  the  registered  birth  of  the  historical  de- 
claration was  in  December,  1823.  It  had  both 
an  international  and  national  period  of  gesta- 
tion, the  history  of  which  is  full  of  interest. 
Our  government  was  extremely  fortunate  in 


226  THE   MONROE   DOCTRINE 

having  at  that  time  for  Secretary  of  State 
John  Quincy  Adams,  and  for  its  envoy  in  Lon- 
don, Richard  Rush,  of  Pennsylvania.  The 
former  had  not  only  the  advantage  of  early 
experience  with  his  father  in  Europe,  but  had 
represented  this  country  in  the  Netherlands, 
Portugal,  Prussia,  Russia,  at  the  Treaty  of 
Ghent,  and  finally  at  London.  He  was  thus 
thoroughly  informed  of  the  ways  of  European 
diplomacy,  and  of  the  spirit  of  the  European 
powers.  To  this  knowledge  he  added  the  firm 
will  and  resolute  patriotism  which  have  long 
characterized  that  distinguished  family.  Mr. 
Rush,  as  his  agent  at  the  court  of  St.  James, 
joined  to  superior  scholarly  attainments  the 
agreeable  manners  which  win  friendship,  the 
truthful  qualities  which  win  confidence,  and 
the  careful  precision  in  action  which  saves 
governments  from  diflBculties  and  chiefs  from 
annoyance.  Mr.  Gallatin  was  our  envoy  ac- 
credited at  Paris,  but  was,  during  this  period, 
on  leave,  and  in  the  United  States.  Mr.  Mid- 
dleton  was  the  minister  of  the  United  States 
at  St.  Petersburg,  where  the  discussion  of  the 
principle  was  also  in  part  conducted. 

The  situation  in  Europe  was  uneasy,  and 
among  its  western  nations  was  some  anger 
and  a  growing  jealousy.  The  eastern  members 
of  the  "  Holy  Alliance  "  were  haughtily  confi- 
dent, having  autocratic  Russia  at  their  head 


THE    MONROE   DOCTRINE  227 

and  subjugated  France  at  their  feet.  One 
Bourbon  had  been  enthroned  at  Paris  by  for- 
eign arms,  and  another,  at  Madrid,  had  re- 
placed a  Bonaparte.  When  the  latter  came  to 
that  throne,  with  the  Spanish  people  rebellious, 
the  Spanish-American  colonies  had  revolted; 
and,  on  the  restoration  of  the  Bourbon  mon- 
arch, had  resolved  to  maintain  their  separation, 
with  independent  governments.  In  1822,  our 
government,  on  full  consideration,  recognized 
their  independence,  and  resolved  thenceforth 
to  use  its  entire  influence  to  secure  the  recog- 
nition of  the  new  states  by  Europe.  Spain,  dur- 
ing the  Napoleonic  confusion,  had  tasted  the 
sweets  of  a  more  liberal  national  life ;  and  the 
Cortes  had  imposed  on  Ferdinand  VII,  after 
his  restoration,  a  constitution  derived  from 
popular  right,  and  inconsistent  with  the  divine 
right  of  kings.  The  royalists,  inspired  by  the 
French  government,  created  an  insurrection  in 
behalf  of  the  Bourbon  principle ;  but  they  were 
defeated.  The  successful  introduction  of  pop- 
ular right  into  Spain  was  rebellion  against  the 
principle  of  the  Holy  Alliance.  The  three  great 
eastern  powers  withdrew  their  ministers  from 
the  government  controlled  by  the  Cortes,  and 
left  to  the  French  monarch  the  wretched  dis- 
tinction of  restoring  absolutism  to  the  throne 
of  Spain.  On  the  28th  of  January,  1823,  he 
announced,  in  his  speech  from  the  throne  to 


228  THE  MONROE   DOCTRINE 

the  French  Chambers,  that  he  had  ordered  the 
recall  of  his  minister  at  Madrid,  and  that  a 
"  hundred  thousand  French  troops  were  ready 
to  march  to  preserve  the  throne  of  Spain  to  a 
descendant  of  Henry  IV,  to  preserve  this  noble 
kingdom  from  its  ruin,  and  to  reconcile  it  to 
Europe."  He  further  declared  that "  Ferdinand 
VH  should  be  free  to  give  to  his  people  the 
institutions  which  they  can  only  hold  from  him, 
and  which,  while  assuring  their  repose,  would 
dissipate  the  just  disquiet  of  France." 

Here  was  the  bold  annunciation  of  that 
claim  of  the  Holy  Alliance  to  the  divine  right 
of  monarchy,  and  to  interference  against  free 
governments,  which  was  the  occasion  of  seri- 
ous alarm  to  the  American  Cabinet,  and  to 
which  portions  of  the  message  of  Mr.  Monroe 
were  a  response.  This  despotic  principle  ex- 
tended equally  to  Spanish  subjects  in  Spain, 
and  to  her  late  subjects  in  America.  It  might 
at  any  time  be  claimed  to  extend  to  the  sup- 
pression of  this  republic,  as  deriving  its  con- 
stitution from  an  unlawful  authority,  —  from 
a  rebellious  people, —  and  as  furnishing  an  ex- 
ample which  caused  disquiet  to  lawful  mon- 
archies. 

In  August,  1823,  the  French  troops  had 
gained  control  of  so  much  of  Spain  as  indi- 
cated the  final  success  of  the  purposes  of  the 
Holy  Alliance   and  the   military  triumph   of 


THE   MONROE   DOCTRINE  229 

France.  Already  was  the  question  raised  in 
the  English  Foreign  Office  what  would  be  the 
next  step  of  Spain  and  of  France,  and  whether 
the  Holy  Alliance  itself  would  not  proceed  to 
the  reclamation  of  Spanish  America.  Eng- 
land, in  consequence  of  the  abolition  of  the 
old  Spanish  colonial  restrictions  on  trade,  had 
already  opened  a  large  and  profitable  com- 
merce with  Spanish  America.  This  would  be 
lost  if  there  should  be  a  restoration  of  colonial 
dependence.  This,  therefore,  was  not  to  be 
desired.  On  the  other  hand,  England  was  the 
greatest  proprietor  of  dependent  colonies  on 
the  globe.  It  was  not  for  her  government  to 
assume  the  attitude  of  encouragement  to  colo- 
nial revolt,  or  of  premature  recognition  of  the 
independence  arising  from  it.  But,  if  not  re- 
cognized, would  not  France  join  her  army  and 
navy  to  the  forces  of  Ferdinand,  and  so  restore 
European  control  over  the  former  Spanish  do- 
mains in  America  ?  In  that  case,  would  not 
France  demand  and  receive  large  compensa- 
tion in  territory  and  colonial  dependence,  and 
in  commercial  intercourse,  for  her  expendi- 
tures in  the  Peninsula  and  beyond  seas }  And 
so  would  appear  on  the  American  scene  a 
contestant  more  vigorous  and  more  formidable 
than  Spain  —  a  more  dangerous  rival  i;n  both 
commercial  and  military  affairs. 

These  were  anxious  questions  with  the  Eng- 


230  THE   MONROE  DOCTRINE 

lish  Cabinet  in  the  summer  of  1823,  when  Mr. 
Canning,  as  English  Minister  for  Foreign  Af- 
fairs, on  the  1 6th  of  August,  in  conversation 
with  Mr.  Rush,  opened  the  inquiry  whether 
the  United  States  would  not  join  England  in 
the  policy  of  disclaiming  all  intention  of  appro- 
priating to  themselves  any  portion  of  the  Span- 
ish possessions  in  America ;  of  regarding  the 
question  of  their  independence  as  practically 
settled ;  and  of  opposition  to  the  acquisition 
of  any  of  these  possessions  by  France,  either 
by  conquest  or  by  cession.  These  views  of  the 
English  government  had  been,  in  part,  pre- 
sented to  France  in  ^April,  through  a  note 
addressed  by  Mr.  Canning  to  the  British  am- 
bassador at  Paris.  French  successes  in  Spain 
appear  to  have  increased  the  fears  of  the  Brit- 
ish government,  and  to  have  inspired  their 
minister  with  the  thought  of  securing  an  ally 
for  their  protest  in  the  government  of  the 
United  States.  He  believed  the  moral  effect 
of  their  concurrent  representations,  with  their 
large  share  of  maritime  power,  would  be  of  it- 
self sufficient  to  prevent  the  results  which  were 
apprehended.  He  himself  believed  "  that  now 
all  America  might  be  considered  as  lost  to 
Europe,  so  far  as  political  dependence  was  con- 
cerned." 

On  the  20th  of  August,  1823,  Mr.  Canning 
again  presented  the  subject  in  a  private  and 


THE   MONROE   DOCTRINE  231 

confidential  note  to  Mr.  Rush,  evidently  care- 
fully worded  and  offered  with  an  air  of  great 
frankness,  in  which  he  declares  the  following 
points  of  English  policy,  and  asks  the  United 
States  to  join  with  England  in  making  them 
public  in  some  suitable  form.  These  points 
are:  — 

''First  That  we  conceive  the  recovery  of 
the  colonies  by  Spain  to  be  hopeless. 

"  Second,  We  conceive  the  question  of  the 
recognition  of  them  as  independent  states  to  be 
one  of  time  and  circumstances. 

"  Third,  We  are,  however,  by  no  means  dis- 
posed to  throw  any  impediment  in  the  way  of 
an  arrangement  between  them  and  the  mother 
country  by  amicable  negotiation. 

"  Fourth,  We  aim  not  at  the  possession  of 
any  portion  of  them  ourselves. 

''Fifth,  We  could  not  see  any  portion  of 
them  transferred  to  any  other  power  with  in- 
difference. 

"  If  these  opinions  and  feelings  are,  as  we 
firmly  believe  them  to  be,  common  to  your 
government  with  ours,  why  should  we  hesitate 
mutually  to  confide  them  to  each  other,  and  to 
declare  them  in  the  face  of  the  world } " 

The  manner  of  bringing  the  United  States 
to  declare  itself  on  point  four  is  worthy  of  at- 
tention. The  despatch  of  Mr.  Rush  communi- 
cating this  "  unofficial "  note  was  received  by 


232  THE   MONROE   DOCTRINE 

Mr.  Adams  October  9th.  Mr.  Rush,  in  his  re- 
ply to  Mr.  Canning,  accepts  in  substance  these 
declarations,  choosing  his  own  form  of  expres- 
sion, and  excluding  the  second,  as  the  recogni- 
tion by  the  United  States  was  already  accorded ; 
but  disclaims  authority  from  his  government 
as  to  the  manner  of  its  avowal  of  the  princi- 
ples and  sentiments  involved. 

On  the  23d  of  August,  1823,  as  reported 
in  Mr.  Rush's  despatch  of  August  28  (also 
received  by  Mr.  Adams  October  9),  Mr.  Can- 
ning, by  way  of  urgency,  addressed  another 
note  to  Mr.  Rush,  in  which  he  advised  him  of 
information  received  that,  after  the  French  suc- 
cess in  Spain,  there  was  an  intention  to  assem- 
ble a  congress,  or  to  devise  other  concerted 
action  upon  the  affairs  of  Spanish  America. 
To  this  note  Mr.  Rush  replied  in  like  spirit  as 
before,  always  insisting  upon  the  importance 
of  an  acknowledgment  of  the  independence  of 
the  American  states  by  England,  and  intimat- 
ing that  he  would  take  great  responsibility  on 
himself  in  following  the  direction  suggested  by 
Mr.  Canning,  if  such  acknowledgment  should 
be  made  at  once ;  and  this  intention  he  reported 
in  his  despatch  to  Mr.  Adams. 

Under  date  of  31st  of  August  Mr.  Canning 
addressed  another  confidential  note  to  Mr. 
Rush,  who  communicated  it  to  the  Depart- 
ment with  his  despatch  of  September  8  (  re- 


THE  MONROE   DOCTRINE  233 

ceived  by  Mr.  Adams  November  5),  in  which 
he  withdraws  any  official  and  decisive  character 
of  his  former  notes,  asking  that  they  be  treated 
not  as  a  proposition,  but  as  evidence  of  the  na- 
ture of  a  proposition  which  he  would  have  de- 
sired to  make  if  Mr.  Rush  had  been  provided 
with  authority  to  entertain  it. 

Mr.  Canning  again,  on  the  i8th  of  Septem- 
ber (reported  by  Mr.  Rush  under  date  of  19th, 
and  received  by  Mr.  Adams  November  3), 
revived  the  subject  with  Mr.  Rush  at  great 
length  and  with  great  urgency ;  and  inquired 
whether,  if  England  should  acknowledge  the 
independence  of  the  Spanish-American  states, 
that  would  affect  Mr.  Rush's  action  upon  the 
declarations  proposed  to  be  made.  To  this 
Mr.  Rush  stated  frankly  that,  while  he  had  no 
specific  powers  to  unite  in  such  declaration, 
he  would  in  that  case  stand  upon  his  general 
powers,  and  "would  put  forth  with  Great 
Britain  the  declaration  to  which  he  had  invited 
him,"  and  would  do  so  "  in  the  name  of  his  gov- 
ernment, and  consent  to  its  being  promulgated 
to  the  world." 

On  the  26th  of  September,  Mr.  Canning 
asked  Mr.  Rush  whether  he  could  not  assent 
to  the  proposals  on  a  promise  by  Great  Britain 
of  the  future  acknowledgment  of  the  inde- 
pendence of  the  South  American  states.  To 
this  Mr.  Rush  gave  a  decided  refusal. 


234  THE  MONROE  DOCTRINE 

It  appears  from  Mr.  Rush's  despatch  of 
\  October  lo  (received  by  the  State  Department 
November  19)  that  he  was  then  convinced  that 
the  whole  effort  of  Mr.  Canning  was  made  in 
the  interests  of  Great  Britain  as  against  France 
and  Russia,  and  that  England  had  no  inter- 
est in  American  independence  except  so  far  as 
it  concerned  British  interests  and  ambition; 
and  that  her  government  was  even  in  general 
sympathy  with  the  Holy  Alliance  in  its  efforts 
to  suppress  popular  reforms  in  Europe.  He 
considers  the  propositions  as  abandoned  by 
England,  and  the  discussion  as  at* an  end.  He 
awakens  to  the  fact  that  British  policy  will  be 
dictated  exclusively  by  British  commercial  inter- 
ests, irrespective  of  colonial  or  national  rights. 
Another  interview  with  Mr.  Canning  on  the 
24th  of  November,  reported  by  Mr.  Rush  under 
date  26th  November,  explains  the  subsequent 
action  of  the  English  Secretary.  Coming  to 
no  understanding  with  Mr.  Rush,  he  decided 
to  proceed  directly  to  the  French  government 
for  an  exchange  of  views  on  the  subject  of 
Spanish  America.  And  in  Mr.  Rush's  despatch 
of  December  27,  1823,  he  communicates  to  hii 
government  the  memorandum  of  the  conference 
between  the  French  ambassador  in  London, 
Prince  de  Polignac,  and  Mr.  Canning,  which 
was  begun  October  9  and  concluded  October  1 2. 
On  the  British  side  it  was  declared  that  the 


THE  MONROE   DOCTRINE  235 

restoration  of  the  colonies  to  Spain  was  hope- 
less, and  further  war  useless.  England  would 
continue  neutral,  but  the  union  of  any  foreign 
power  with  Spain  in  the  attempt  to  recover  the 
colonies  would  present  a  new  question  on  which 
England  would  be  free  to  act.  The  govern- 
ment disclaimed  any  desire  to  appropriate  to 
itself  territory  or  exclusive  advantages,  and 
intimated  its  intention  to  recognize  the  new 
states ;  and,  in  presence  of  any  foreign  force 
or  menace  in  the  Spanish-American  dispute, 
they  would  be  recognized  without  delay. 

On  the  part  of  France  it  was  declared  that 
the  claim  of  Spain  was  hopeless,  that  France 
had  no  intention  or  desire  to  avail  itself  of  the 
present  state  of  the  colonies,  or  of  the  relations 
between  France  and  Spain,  to  appropriate  to 
herself  any  part  of  the  Spanish  possessions  in 
America,  or  to  obtain  exclusive  privileges ;  and 
that  she  abjured  all  intention  to  act  by  force 
of  arms  against  the  colonies.  France  was  in 
favor  of  a  congress  of  the  allies  to  facilitate 
reconciliation  between  Spain  and  her  colonies, 
and  was  opposed  to  any  recognition  of  the  new 
states  at  present. 

Mr.  Canning  further  remarked  upon  the 
impropriety  of  a  representative  congress  dis- 
cussing Spanish -American  affairs  "without 
calling  to  their  counsels  a  power  so  eminently 
interested  in  the  result  as  the  United  States  of 


23#  THE   MONROE   DOCTRINE 

America."  To  this  the  Prince  avowed  himself 
without  instructions,  but,  personally,  saw  no  in- 
superable difficulty  in  such  an  association.  In 
point  of  fact,  an  invitation  to  a  congress  of  the 
powers,  to  be  held  at  Paris,  to  consider  Spanish- 
American  affairs,  was  issued  by  the  Conde  de 
Of  alia  on  the  part  of  the  Spanish  government, 
under  date  of  26th  December,  1823. 

All  these  despatches  of  Mr.  Rush,  up  to  and 
including  that  of  October  10,  which  announced 
the  abandonment  of  the  propositions,  were  re- 
ceived by  Mr.  Adams  prior  to  November  20, 
and,  of  course,  in  advance  of  the  message  of 
Mr.  Monroe. 

But  it  was  neither  Mr.  Rush's  despatches  nor 
Mr.  Canning's  proposals  which  first  presented 
the  question  of  principle  to  the  American  gov- 
ernment. Mr.  Adams  possessed  not  only  a 
trained  intellect,  inspired  by  ardent  love  of  our 
republican  institutions,  but  a  perfect  acquaint- 
ance with  the  spirit,  methods,  and  tendency  of 
European  diplomacy.  No  man  could  better 
appreciate  the  menaces  to  human  liberty  every- 
where, and  to  all  rights  of  the  people,  as  threat- 
ened by  the  several  congresses  of  the  allied 
powers,  and  especially  by  their  circular  of  De- 
cember 5,  1822,  in  which  the  allied  monarchs 
announced  their  resolution  "  to  repel  the  maxim 
of  rebellion,  in  whatever  place,  or  under  what- 
ever form,  it  might  show  itself."    He  knew  that 


THE   MONROE   DOCTRINE  237 

the  unorganized  riot  of  insurrection  and  the 
organized  riot  of  despotism  were  alike  destruc- 
tive of  popular  libert}\y  Just  now,  after  the  final 
overthrow  of  all  the  Bonapartes,  it  was  the  riot 
of  despotism.  It  was  important  to  keep  these 
despotic  powers  from  our  continent,  if  possible. 
An  ocean  between  was  safer  than  contiguity 
of  any  kind.  There  were  many  leagues  of  lit- 
tle known  and  much  disputed  boundary  on 
our  northwestern  coast,  claimed  by  the  United 
States,  by  England,  and  by  Russia.  The  Rus- 
sian minister  at  Washington  wanted  to  know 
what  instructions  our  Secretary  was  going  to 
send  to  Mr.  Middleton.  Mr.  Adams  answered 
him  sturdily,  on  July  17, 1823,  that  "we  should 
contest  the  right  of  Russia  to  any  territorial 
establishments  in  this  continent ;  and  that  we 
should  assume  distinctly  the  principle  that  the 
American  continents  are  no  longer  subjects  for^ 
any  new  European  colonial  establishments." 

Here,  already  announced  to  the  chief  of  the 
Holy  Alliance  more  than  four  months  prior  to 
President  Monroe's  message,  was  one  branch 
of  the  Monroe  Declaration.  In  his  message  of 
December  following,  it  took  authoritative  form 
as  follows  :  "  The  American  continents,  by  the 
free  and  independent  condition  which  they  have 
assumed  and  maintain,  are  henceforth  not  to 
be  considered  as  subjects  for  future  coloniza- 
tion by  any  European  power." 


238  THE  MONROE   DOCTRINE 

While  Mr.  Canning  was  anxiously  observing 
the  dangers  which  threatened  British  commer- 
cial interests  in  America  from  the  probable 
interferences  of  the  allied  powers  in  Spanish- 
American  aflFairs,  and  while  Mr.  Rush  was 
writing  his  urgent  despatches,  the  Russian 
Premier,  Count  Nesselrode,  was  dictating  cer^  i 
tain  despatches  to  his  minister  at  Washington, 
Baron  Tuyl,  touching  the  same  affairs.  These 
despatches  were  communicated  to  Mr.  Adams 
in  November,  about  the  time  of  the  arrival  of 
the  last  despatches  of  Mr.  Rush  on  the  subject 
of  the  Canning  proposals.  "In  stating  the  views 
of  the  Czar,  Count  Nesselrode  took  occasion  to 
present  the  political  ideas  of  the  allied  powers, 
as  well  as  the  Russian  view  of  the  Spanish 
claim  to  the  revolted  American  continent 
Thus  from  various  sides  were  concentrating 
upon  Mr.  Adams,  in  the  autumn  of  1823,  notes 
of  the  preparation  of  a  conflict  which  was  gen- 
erally expected,  and  in  which  the  mailed  hand 
of  the  Holy  Alliance  would  strike  the  new 
continents,  and  would  confront  the  principles 
of  European  despotism  with  the  principles  of 
American  liberty,  in  close  and  irrepressible 
combat.  The  stubborn  patriotism  of  Adams 
did  not  for  a  moment  falter.  "  My  purpose 
would  be,"  he  says  of  himself,  "  in  a  moderate 
and  conciliatory  manner,  but  with  a  firm  and 
determined  spirit,  to  declare  our  dissent  from 


THE   MONROE   DOCTRINE  239 

the  principles  avowed  in  those  communications, 
and  assert  those  upon  which  our  government 
is  founded ;  and  while  disclaiming  all  intention 
to  propagate  them  by  force,  and  all  interference 
with  the  affairs  of  Europe,  to  declare  our  ex- 
pectation and  hope  that  the  European  powers 
will  equally  abstain  from  the  attempt  to  spread 
their  principles  in  the  American  hemisphere, 
or  to  subjugate,  by  force,  any  part  of  these 
continents  to  their  will." 

Here  again  is  seen  the  gestation  in  Mr. 
Adams's  fertile  and  resolute  mind  of  the  other 
branch  of  the  Monroe  Doctrine,  and  he  notes 
that  his  "views  were  approved  by  the  Presi- 
dent." 

Prior  to  the  25th  of  November,  the  Secretary 
of  State  had  prepared  his  draft  of  a  reply  "  in- 
tended as  a  firm,  spirited,  and  yet  conciliatory 
answer  to  all  communications  lately  received 
from  the  Russian  government,  and  at  the 
same  time  an  unequivocal  answer  to  the  pro- 
posals made  by  Canning  to  Mr.  Rush.  It  was 
meant  also  to  be  eventually  an  exposition  of 
the  principles  of  this  government,  and  a  brief 
development  of  its  political  system  as  hence- 
forth to  be  maintained  :  essentially  republican 
—  maintaining  its  own  independence,  and  re- 
specting that  of  others ;  essentially  pacific  — 
studiously  avoiding  all  involvement  in  the  com- 
binations  of    European    politics,    cultivating 


240  THE   MONROE  DOCTRINE 

peace  and  friendship  with  the  most  absolute 
monarchies,  highly  appreciating  and  anxiously 
desirous  of  retaining  that  of  the  Emperor 
Alexander;  but  declaring  that,  having  recog- 
nized the  independence  of  the  South  Ameri- 
can states,  we  could  not  see  with  indifference 
any  attempt  by  European  powers,  by  forcible 
interposition,  either  to  restore  the  Spanish 
dominion  on  the  American  continents,  or  to 
introduce  monarchical  principles  into  those 
countries,  or  to  transfer  any  portion  of  the 
ancient  or  present  American  possessions  of 
Spain  to  any  other  European  power." 

At  this  time,  it  appears  by  a  remark  of  Mr. 
Adams,  the  President  had  already  prepared  a 
paragraph  of  his  message  relating  to  this  sub- 
ject, to  which  his  despatch  was  to  be  "  conform- 
able." The  draft  of  Mr.  Adams  was  the  subject 
of  repeated  discussions  at  the  meetings  of  the 
Cabinet.  President  Monroe  thought  it  too 
strong  in  its  expressions.  He  was  cautious, 
even  timid,  from  fear  of  offending  the  Russian 
emperor,  and  believed  it  imprudent  to  state, 
as  Mr.  Adams  desired,  the  principles  of  our 
republican  government  in  answer  to  Count 
Nesselrode's  statement  of  imperial  principles. 
Messrs.  Wirt,  Calhoun,  and  Southard  took 
part  in  the  discussions,  and  Mr.  Gallatin  was 
called  in  for  counsel. 

Very  soon  after  the  reception  of  the  Can- 


THE  MONROE  DOCTRINE  241 

ning  proposals  from  Mr.  Rush,  the  President 
had  communicated  them  to  the  venerable  pa- 
triot at  Monticello  for  his  opinion.  Mr.  Jeffer- 
son had  represented  his  country  at  Paris  and 
at  London,  and  both  as  President  and  as  a 
retired  citizen  was  well  advised  of  the  course 
of  European  affairs.  Nothing  had  ever  shaken 
his  republican  faith  or  his  sincere  patriotism. 
Mr.  Monroe  confided  to  him  the  correspond- 
ence which  contained  the  germs  of  such  an  im- 
portant feature  of  American  policy,  and  which 
possibly  involved  the  independence  of  the 
Spanish-American  republics,  with  the  fate  of 
liberty  itself  in  the  western  hemisphere.  On 
the  24th  October,  1823,  Mr.  Jefferson,  at  the 
age  of  eighty  years,  responds  with  the  vigor 
and  vivacity  of  youth :  — 

"  The  question  presented  by  the  letters  you 
have  sent  me  is  the  most  momentous  which 
has  ever  been  offered  to  my  contemplation 
since  that  of  Independence.  .  .  . 

"Our  first  and  fundamental  maxim  should 
be,  never  to  entangle  ourselves  in  the  broils  of 
Europe.  Our  second,  never  to  suffer  Europe 
to  intermeddle  with  cis-Atlantic  affairs.  .  .  . 

"  Great  Britain  is  the  nation  which  can  do  us 
the  most  harm  of  any  one,  or  all  on  earth ;  and 
with  her  on  our  side  we  need  not  fear  the  whole 
world.  With  her,  then,  we  should  most  sedu- 
lously cherish  a  cordial  friendship ;  and  nothing 


242  THE  MONROE   DOCTRINE 

would  tend  more  to  knit  our  affections  than 
to  be  fighting  once  more,  side  by  side,  in  the 
same  cause.  Not  that  I  would  purchase  even 
her  amity  at  the  price  of  taking  part  in  her 
wars.  But  the  war  in  which  the  present  propo- 
sition might  engage  us,  should  that  be  its  con- 
sequence, is  not  her  war,  but  ours.  Its  object 
is  to  introduce  and  establish  the  American 
system,  of  keeping  out  of  our  land  all  foreign 
powers  —  of  never  permitting  those  of  Europe 
to  intermeddle  with  the  affairs  of  our  nations. 
It  is  to  maintain  our  own  principle,  not  to  de- 
part from  it.  And  if,  to  facilitate  this,  we  can 
effect  a  division  in  the  body  of  the  European 
powers,  and  draw  over  to  our  side  its  most 
powerful  member,  surely  we  should  do  it.  But  I 
am  clearly  of  Mr.  Canning's  opinion,  that  it  will 
prevent  instead  of  provoking  war.  With  Great 
Britain  withdrawn  from  their  scale  and  shifted 
into  that  of  our  two  continents,  all  Europe 
combined  would  not  undertake  such  a  war." 

After  speaking  of  the  question  of  the  United 
States  acquiring  some  Spanish-American  do- 
mains, and  finding  it  impracticable,  he  con- 
tinues :  — 

"  I  could  honestly,  therefore,  join  in  the  de- 
claration proposed,  —  that  we  aim  not  at  the 
acquisition  of  any  of  those  possessions,  that 
we  will  not  stand  in  the  way  of  any  amicable 
arrangement  between  them  and  the  mother 


THE   MONROE   DOCTRINE  243 

country ;  but  that  we  will  oppose,  with  all  our 
means,  the  forcible  interposition  of  any  other 
power  as  auxiliary,  stipendiary,  or  under  any 
other  form  or  pretext,  and,  most  especially, 
their  transfer  to  any  power  by  conquest,  ces- 
sion, or  acquisition  in  any  other  way." 

By  desire  of  the  President,  Mr.  Jefferson 
transmitted  the  Rush  correspondence  to  that 
other  experienced  statesman  of  Virginia,  Mr. 
Madison,  whose  retirement  at  Montpelier,  and 
his  age  of  seventy-two  years,  could  not  prevent 
patriotic  appeals  to  his  wisdom  and  experience. 
The  junior  of  Mr.  Jefferson  by  eight  years,  the 
response  of  Mr.  Madison  indicates  a  mind  by 
far  senior  to  that  of  his  more  vivacious  com- 
patriot. His  logical  mind  accepts  the  situation 
as  portrayed,  and  sees  clearly  the  necessity  "  to 
defeat  the  meditated  crusade  "  against  Ameri- 
can independence.  Under  date  of  October  30, 
1823,  he  writes  to  President  Monroe:  — 

"  It  is  particularly  fortunate  that  the  policy 
of  Great  Britain,  though  guided  by  calcula- 
tions different  from  ours,  has  presented  a  co- 
operation for  an  object  the  same  with  ours. 
With  that  cooperation  we  have  nothing  to 
fear  from  the  rest  of  Europe,  and  with  it  th^ 
best  assurance  of  success  to  our  laudable  views. 
There  ought  not,  therefore,  to  be  any  back- 
wardness, I  think,  in  meeting  her  in  the  way 
she  has  proposed ;  keeping  in  view,  of  course. 


244  THE   MONROE    DOCTRINE 

the  spirit  and  forms  of  the  Constitution  in 
every  step  taken  in  the  road  to  war,  which 
must  be  the  last  step,  if  those  short  of  war 
should  be  without  avail." 

In  a  note  to  Mr.  Jefferson,  written  a  few 
days  later,  he  gives  expression  to  a  sentiment 
which  ran  as  an  undercurrent,  and  still  runs 
as  an  undercurrent,  of  all  the  policy  under  dis- 
cussion. He  says:  "In  the  great  struggle  of 
the  epoch  between  liberty  and  despotism,  we 
owe  it  to  ourselves  to  sustain  the  former —  in 
this  hemisphere,  at  least." 

We  now  see  collected  before  President 
Monroe,  in  anticipation  of  the  final  form  of 
his  famous  declarations,  the  motive  forces  and 
opinions  which  modified  or  directed  the  his- 
torical result.  Mr.  Canning's  proposals,  some- 
times hesitating,  sometimes  eager,  always  aux- 
iliary to  some  unavowed  interest  of  England ; 
Mr.  Rush's  generous  efforts  to  secure  South 
American  independence  by  British  recogni- 
tion; Russia's  bold  enunciation  of  despotic 
principles  and  of  the  right  of  the  Spanish 
monarch  to  reclaim  his  rebellious  provinces; 
Mr.  Adams's  robust  counterblast,  declaring  the 
inalienable  rights  of  the  people  ;  the  vivacious 
counsels  of  JeflFerson's  liberalism,  and  the  sober 
advice  of  Madison's  trained  and  logical  wis- 
dom, —  all  these  contributed  to  shape  the  other 
branch  of  the  Monroe  Declaration,  as  follows : — 


THE  MONROE   DOCTRINE  245 

"  We  owe  it  to  candor,  and  to  the  amicable 
relations  existing  between  the  United  States 
and  the  allied  powers,  to  declare  that  we  should 
consider  any  attempt  on  their  part  to  extend 
their  system  to"  any  portion  of  this  hemisphere 
as  dangerous  to  our  peace  and  safety.  With 
the  existing  colonies  or  dependencies  of  any 
European  power  we  have  not  interfered,  and 
shall  not  interfere ;  but  with  the  governments 
who  have  declared  their  independence  and 
maintained  it,  and  whose  independence  we 
have,  on  great  consideration  and  on  just  prin- 
ciples, acknowledged,  we  could  not  view  any 
interposition  for  the  purpose  of  oppressing 
them,  or  controlling  in  any  other  manner  their 
destiny,  by  any  European  power,  in  any  other 
light  than  as  the  manifestation  of  an  unfriendly 
disposition  toward  the  United  States.  .  .  . 

"  It  is  impossible  that  the  allied  powers 
should  extend  their  political  system  to  any 
portion  of  either  continent  without  endanger- 
ing our  peace  and  happiness.  .  .  . 

"  It  is  equally  impossible  that  we  should 
behold  such  interposition  in  any  form  with 
indifference." 

The  effect  of  this  Declaration  in  Europe  was 
all  that  could  have  been  desired  by  the  patri- 
otic statesmen  who  contributed  their  counsel 
to  its  adoption.  The  message  arrived  in  Eng- 
land on  December  24,  1823,  twenty-two  days 


246  THE  MONROE   DOCTRINE 

from  its  delivery  to  Congress.  On  the  2d  of 
January,  Mr.  Canning  told  Mr.  Rush  that  the 
principle  declared  in  the  message,  that  the 
American  continents  were  not  to  be  consid- 
ered as  subjects  for  future  colonization  by  any 
of  the  powers  of  Europe,  greatly  embarrassed 
the  instructions  he  was  about  to  send  to  the 
British  ambassador  at  St.  Petersburg,  touching 
the  northwestern  boundary.  He  believed  that 
Great  Britain  would  combat  this  Declaration  of 
the  President  with  animation. 

Mr.  Rush,  under  date  of  January  6,  1824, 
writes :  — 

"All  the  Spanish- American  deputies  now  in 
London  have  waited  upon  me  since  its  arrival, 
testifying  the  high  and  grateful  sense  they  en- 
tertain of  the  service  which  its  decisive  tone  in 
regard  to  Spanish- America  has  rendered  to 
their  respective  countries." 

The  Spanish  invitation  of  December  26,  for 
a  congress  touching  her  late  American  posses- 
sions, was  paralyzed.  The  whole  message,  on 
its  arrival  in  London,  excited  great  attention. 
"  It  was  upon  all  tongues ;  the  press  was  full 
of  it;  the  Spanish-American  deputies  were 
overjoyed ;  Spanish-American  securities  rose 
in  the  stock  market,  and  the  safety  of  the  new 
states  from  all  European  coercion  was  consid- 
ered as  no  longer  doubtful."  The  document 
received  the  approval  of  the  calm  judgment 


THE   MONROE   DOCTRINE  247 

of  Mr.  Madison  in  April,  1824,  in  the  following 
terms :  — 

"  I  never  had  a  doubt  that  your  message, 
proclaiming  the  just  and  lofty  sentiments  of 
ten  millions,  soon  to  become  twenty,  enjoying 
in  tranquil  freedom  the  rich  fruits  of  success- 
ful revolution,  would  be  received  in  the  pre- 
sent crisis  of  Europe  with  exulting  sympathies 
by  all  such  men  as  Lafayette,  and  with  enven- 
omed alarm  by  the  partisans  of  despotism. 
The  example  of  the  United  States  is  the  true 
antidote  to  the  doctrines  and  devices  of  the 
Holy  Allies  ;  and  if  continued,  as  we  trust  it 
will  be,  must  regenerate  the  Old  World,  if  its 
regeneration  be  possible." 

Its  effect  upon  the  then  pending  negotia- 
tions with  Russia  was  so  favorable  that  the 
convention  of  1824  was  concluded,  in  the 
spring  of  that  year,  by  the  withdrawal  on 
the  part  of  the  emperor  of  his  pretensions  to  ex- 
clusive trade  and  navigation  on  the  northwest 
coast,  and  by  fixing  the  parallel  of  54°  40'  as 
the  line  between  the  permissible  establish- 
ments of  the  respective  countries.  Between 
no  two  governments  of  the  civilized  world  was 
the  contrast  so  divergent  in  all  their  political 
principles,  traced  from  their  foundation  through 
all  their  development,  as  between  the  United 
States  and  Russia.  Yet  between  the  Ameri- 
can Republic  and  no  other  country  has  there 


24S  THE   MONROE  DOCTRINE 

been  a  longer  continued  or  more  unbroken 
friendship.  The  American  diplomatist  in 
Europe  is  often  asked  for  an  explanation  of 
this  fact.  Perhaps  the  answer  may  be  found 
in  a  remark  of  the  late  Czar  to  a  former  min- 
ister of  the  United  States.  Said  he:  "Your 
government  and  mine  are  the  only  logical  gov- 
ernments in  the  world.  Either  the  whole  peo- 
ple, or  one  man,  is  entitled  to  rule."  In  1823 
the  Holy  Alliance  took  the  despotic  view,  and 
maintained  it  in  Europe.  The  government  of 
our  country  took  the  popular  view,  and  de- 
clared through  the  President  their  resolution 
to  maintain  it  on  this  hemisphere.  Each  re- 
spected the  sense  of  right  which  animated  the 
other,  and  each  has  limited  itself  to  its  own 
sphere ;  and  more  recently  Russia  has  wholly 
withdrawn  from  this  continent,  with  assign- 
ment of  all  her  rights  to  this  republic. 

Note.  —  In  the  dispute  which  arose  in  1895  respecting  the 
forcible  extension  of  the  British  boundary  into  Venezuela,  the 
British  government  made  an  important  statement  respecting 
the  Monroe  Declaration,  in  its  correspondence  with  the  Wash- 
ington government,  which  is  worthy  of  record  in  this  history. 
It  is  as  follows  :  — 

"  In  declaring  that  the  United  States  would  resist  any  such 
interference  if  it  was  contemplated,  President  Monroe  adopted 
a  policy  which  secured  the  entire  sympathy  of  the  English  gov- 
ernment of  that  date.  .  .  .  They  [her  majesty's  government  in 
1895]  fully  concur  with  the  view  which  President  Monroe  ap- 
parently entertained  that  any  disturbance  of  the  existing  terri- 
torial distribution  in  that  hemisphere  by  any  fresh  acquisitions 
on  the  part  of  any  European  state  would  be  a  highly  inexpedi- 
ent change." 


II 

THE  MONROE   DOCTRINE   IN   LATER  YEARS 

Such  was  the  evolution  of  the  Monroe  Decla- 
ration. That  Declaration  was  especially  appli- 
cable to  the  international  conditions  then  ex- 
isting. Its  formula  was  more  limited  than'  that 
recommended  by  some  of  the  chief  counsel- 
lors of  the  President.  He,  acting  under  the 
influence  of  his  great  responsibility  and  his 
characteristic  caution,  was  content  to  satisfy 
the  immediate  demand  of  his  time. 

Mr.  Quincy  Adams  and  Mr.  Jefferson,  with 
far-reaching  foresight,  would  establish  the  prin- 
ciple in  terms  broad  enough  to  embrace  the 
probable  conditions  of  the  future. 

It  remains  to  show  the  later  expansion  of 
the  principle,  and  to  affirm  the  necessity  of  its 
application  to-day  in  the  broader  sense  indi- 
cated by  both  Mr.  Jefferson  and  Mr.  Adams. 

The  United  States  Cabinet  of  1823  was 
alarmed  by  the  despotic  announcement  of  the 
Powers  at  Laybach  and  at  Troppau.  These 
furnished  a  powerful  motive  of  its  decision. 
The  imperial  coalition  had  proclaimed  at  Lay- 
bach  that  they  regarded  every  reform  effected 
by  means  of  an  insurrection  as  null,  and  con- 


^ 


250  THE  MONROE   DOCTRINE 

trary  to  the  public  law  of  Europe ;  and  that 
they  would  pursue  rebellion  everywhere,  and 
under  whatever  form  it  should  show  itself.  At 
Troppau  they  went  so  far  as  to  affirm  that  by 
divine  law  European  nations  had  the  impre- 
scribable  right  to  put  themselves  in  open  hos- 
tility against  states  which,  by  a  change  of  their 
institutions  or  their  government,  offered  a 
dangerous  example.  These  principles  clearly 
touched  the  life  of  every  American  republic ; 
and  in  1823  they  were  forcibly  applied  to  the 
suppression  of  the  parliamentary  system  of 
the  Spanish  monarchy,  and  then  threatened 
the  independence  of  the  Spanish-American 
colonies.  It  is  quite  credible  that  at  that  period 
only  the  great  waste  of  the  Atlantic  waters 
saved  the  American  republics  from  a  conflict 
for  their  national  life.  Even  this  wide  desert 
boundary  did  not  save  Mexico  so  late  as  1864- 
65  from  the  vital  struggle  between  European 
and  American  political  systems.  Napoleon  III, 
believing  the  United  States,  then  engaged  in 
civil  war,  to  be  disabled  from  a  military  en- 
forcement of  the  Monroe  Declaration,  ventured 
upon  the  fatal  attempt  to  impose  an  Euro- 
pean system  of  empire  upon  our  neighbor- 
ing republic  of  Mexico.  The  imperial  disaster 
which  followed  will  probably  serve  as  a  suffi- 
cient warning  against  any  similar  undertaking 
in  the  future. 


THE   MONROE   DOCTRINE  251 

It  may  be  admitted  that  the  principles  in 
question,  as  declared  by  Mr.  Monroe,  were 
limited  to  these  two  points :  First,  that  no  for- 
eign power  should  thereafter  establish  a  colony 
within  the  territories  of  any  of  the  de  facto  in- 
dependent states  of  America,  meaning  thereby 
to  include  all  parts  of  both  continents  not  at 
that  time  held  as  colonial  possessions.  Sec- 
ond, that  no  European  power  should  attempt 
by  force  to  introduce  monarchical  institutions 
into  any  American  territory,  or  otherwise  inter- 
fere to  oppress  the  American  states,  or  control 
their  independent  development.  The  French 
emperor's  action  in  Mexico  was  a  violation  of 
the  latter  principle. 

Seiior  Calvo,  in  his  late  treatise  on  interna- 
tional law,  after  a  review  of  the  principles  of 
Mr.  Monroe's  message,  of  the  international 
conditions  which  preceded  it,  and  of  the  Con- 
gressional discussions  which  followed  it,  states 
its  points  touching  colonization  as  follows: 
"  First,  that  the  European  colonial  system  is 
inapplicable  to  the  new  situation  of  America, 
because  all  parts  of  the  American  continents 
are  inhabited  by  civilized  nations,  which,  in 
respect  to  their  independence,  and  to  alien 
sovereignty  over  them,  have  absolutely  the 
same  title  as  European  nations.  Second,  that 
the  questions  of  boundary  between  the  ancient 
European  establishments  and  the  new  Ameri- 


452  THE  MONROE   DOCTRINE 

can  states  can  only  be  settled  according  to  the 
general  principles  of  international  law.  Third, 
that  the  first  occupation  or  first  exploration 
creates  now  no  longer  any  right  of  sovereignty 
over  the  American  territories,  whose  rightful 
sovereignty  can  only  result,  in  the  future,  from 
a  treaty  or  from  war.  In  this  last  point  of  view 
we  may  say  that  American  public  law  is  the 
same  as  that  of  Europe,  and  rests  exactly  upon 
the  same  basis." 
^^^-"^  Europe  had  frankly  accepted  Mr.  Monroe's 
declarations  in  their  spirit,  we  should  have  had 
\  no  occasion  to  reaffirm  his  principles,  or  to  en- 
I  large  the  terms  of  their  statement.  But  Europe 
has  not  done  so.  Chili  has  had  complaints  touch- 
ing colonizations  attempted  on  her  extreme 
southern  and  inhospitable  borders.  England 
has  asserted  claims  in  Central  America  which 
have  caused  us  troublesome  and  dangerous 
complications.  France  and  Austria,  at  first 
assisted  by  Spain  and  England,  have  made  a 
serious  assault  upon  Mexico,  to  control  her 
independence  and  to  change  her  government 
They  have  not  respected  our  demand  for  non- 
interference in  the  internal  affairs  of  this  hemi- 
sphere. Some  of  them  still  seek  possessions 
here.  They  have  forced  us  to  vigilance.  Calvo 
is  probably  right  in  saying  that  the  letter  of 
the  Monroe  Declaration  leaves  open  the  ques- 
tion of  colonial  acquisitions  by  war  or  by  treaty. 


THE   MONROE  DOCTRINE  253 

Nevertheless,  beyond  our  own  territory,  our 
interest  is  exclusively  with  the  fact  of  coloni- 
zation or  acquisition,  no  matter  by  what  mode 
or  claim  of  right.  Our  interests  are  affected 
by  the  fact.  Whether  they  change  a  sovereign 
jurisdiction  on  a  part  of  our  continent,  or  effect 
other  interference,  by  direct  war,  or  by  the  in- 
strumentality of  a  charter  granted  by  them  to 
their  subjects,  with  retained  power  of  control ; 
whether  they  act  by  intimidation,  by  force,  by 
finesse,  or  by  purchase,  it  is  the  resulting  fact 
with  which  we  have  to  deal.  It  is  that  which 
touches  our  interests,  and  changes  our  existing 
relations  with  the  territory  affected. 

Cannot  a  European  nation,  then,  make  wars 
or  treaties  with  an  independent  American 
state?  Certainly.  But  should  their  result  in- 
volve consequential  detriment  to  our  national 
interests,  or  threaten  our  national  security, 
public  law  and  precedent  concede  to  us  the 
right  to  protest,  and  to  enforce  that  protest  by 
defensive  action.  European  diplomacy  is  full 
of  precedents  for  the  right  of  intervention  in 
such  cases.  The  entire  "  balance-of-power " 
theory,  whose  discussions  pervade  the  modern 
diplomatic  history  of  Europe,  starts  from  that 
principle.  We  need  to  go  no  farther  to  seek  a 
precedent  than  in  Mr.  Canning's  proposals  to 
Mr.  Rush  for  joint  action  against  the  antici- 
pated projects  of  France  in  1823.   These  pro- 


254  THE  MONROE   DOCTRINE 

jects  involved  no  direct  assault  on  England  or 
the  United  States.  They  were  directed  exclu- 
sively to  American  territories  of  a  third  power, 
and  threatened  a  change  simply  in  an  American 
country,  which  France  might  obtain  by  cession, 
or  as  indemnity  for  war. 

It  is  no  longer  for  us  a  question  of  the  divine 
right  of  despotism  to  extend  its  sphere  of  su- 
premacy to  America,  as  it  was  in  1822-23.  It 
is  a  question  now  of  commercial  control,  and 
exclusive  commercial  and  military  advantages. 
Covetous  eyes  are  cast  on  outlying  islands  and 
continental  coasts  of  Central  and  South  Amer- 
ica. A  steamship  line  is  preferred  to  an  army  ; 
a  canal  to  a  fortification ;  a  good  harbor  to  a 
strong  citadel.  One  far-sighted  government, 
eager  for  the  extension  of  its  foreign  trade  and 
naval  influence,  has  initiated  negotiations  for 
the  transfer  to  it  of  a  seemingly  unimportant 
but  really  commanding  tract  of  waste  land. 
The  weak  government  approached  may  be 
disposed  to  yield.  The  islands  of  the  central, 
the  Pacific,  and  the  southern  seas  have  become 
objects  of  special  interest  and  examination  to 
more  than  one  of  the  naval  and  commercial 
powers  of  the  Old  World.  At  least  two  of  the 
continental  powers  have  been  looking  dili- 
gently for  new  colonial  stations  across  or  in 
the  world  of  western  waters.  The  unhappy 
and  repeated  dissensions  and  irregularities  of 


THE   MONROE   DOCTRINE  255 

the  Central  and  South  American  states  furnish 
too  many  occasions  for  European  interference 
and  claims  of  indemnity.  Their  resulting  finan- 
cial condition  offers  too  strong  temptation  to 
relieve  embarrassments  by  the  expropriation  of 
territorial  rights  and  privileges.  It  is  easy  to 
find  occasion  for  a  naval  war,  if  any  European 
power  desires  a  pretext  for  the  seizure  of  a 
port  or  a  territory.  The  recognized  doctrine 
of  a  war  indemnity  stands  in  aid  of  the  acquis- 
itive purpose.  To  establish  a  colonial  depend- 
ency in  America  by  treaty,  or  as  a  result  of 
war,  —  these  alternatives,  according  to  Sefior 
Calvo,  remain  to  the  European  nations  with- 
out violating  the  principle  of  the  Monroe  De- 
claration. 

Europe  would  be  misled  by  the  acceptance 
of  that  view,  and  still  more  deceived  by  ac- 
cepting it  as  indicating  the  principles  distinctly 
held  on  this  subject  by  the  United  States  dur- 
ing the  last  fifty  years.  "^^-^ 

The  original  Declaration  was  limited,  in 
words,  by  the  circumstances  of  that  epoch. 
The  reasons  upon  which  it  was  founded  pro- 
vided room  for  a  further  development  and  ex- 
tension of  the  declaration.  This  government 
has  from  time  to  time  indicated  this  develop- 
ment, and  shown  its  desire  to  preserve  always 
toward  the  ambitious  commercial  powers  of 
Europe  an  attitude  of  candor  and  dignity,  white       . 


256  THE   MONROE   DOCTRINE 

defending  its  own  rights  and  interests.  There 
was  no  display  of  mere  sentiment  against  mon- 
archical institutions  in  America.  On  the  con- 
trary, our  government  recognized  the  imperial 
establishment  of  Iturbide  in  Mexico,  and  Dom 
Pedro  in  Brazil,  because  both  were  by  choice 
of  the  people,  and  were  home  powers.  Indeed, 
the  Brazilian  diplomatic  agent  told  Mr.  Adams 
that  the  Brazilian  emperor  was  more  republi- 
can than  the  people  whom  he  ruled.  On  the 
other  hand,  we  have  always  claimed  that  it  was 
our  material  interests  which  demanded  the 
maintenance  of  the  American  principle  of  non- 
colonization  and  non-acquisition  by  Europe  on 
the  western  continents.  While  acknowledging 
existing  colonial  rights,  Mr.  Adams  was  of 
opinion  that  "  we  could  not  see  with  indiffer- 
ence any  attempt ...  to  transfer  any  portion  of 
the  ancient  or  present  American  possessions 
of  Spain  to  any  other  European  power."  Mr. 
Rush  was  ready  to  unite  with  Mr.  Canning  in 
declaring  that  "  we  could  not  see  any  portion 
of  them  transferred  to  any  other  power  with 
indifference."  Mr.  Jefferson  advised  President 
Monroe  —  facing  a  possible  war  for  the  prin- 
ciple —  "  to  establish  the  American  system  of 
keeping  out  of  our  land  all  foreign  powers; 
of  never  permitting  those  of  Europe  to  inter- 
meddle with  the  affairs  of  our  nations ; "  and 
to  oppose,  "  most  especially,  their  transfer  (of 


THE  MONROE   DOCTRINE  257 

the  Spanish-American  possessions)  to  any 
power  by  conquest,  cession,  or  acquisition  in 
any  other  way." 

Our  own  happy  condition  is  not,  unfortu- 
nately, that  of  all  our  neighbors  of  this  hemi- 
sphere. It  will  not  be  theirs  for  many  years  to 
come.  Their  weakness  has  invited,  their  in- 
ternal disorders  have  provoked,  the  acquisitive 
passions  of  several  European  governments. 
The  persistent  interference  of  the  British  in 
Nicaragua  was  one  long  vexation  to  that  weak 
nation,  to  our  government,  and  to  our  in- 
terests in  Central  America.  Through  it  all, 
our  government  asserted  the  non-colonization 
principle.  It  was  not  settled,  though  earnestly 
desired,  by  the  Anglo-Nicaraguan  treaty  of 
i860,  which  has  been  itself  the  subject  of  ar- 
bitration. In  1848,  Yucatan,  too  weak  to  sup- 
press by  her  own  arms  the  general  insurrec- 
tion of  her  uncivilized  Indians,  appealed  to 
England  and  to  Spain  for  help.  This  being 
refused,  she  offered  to  the  United  States  her 
sovereignty  in  exchange  for  the  required  as- 
sistance. Mexico  claimed  this  sovereignty; 
and  our  government,  although  at  war  with  her, 
refused  the  offer,  but  proposed  to  aid  this 
detached  state  of  the  Mexican  federation.  Pre- 
sident Polk,  in  his  message  of  December,  1845, 
after  approving  the  Monroe  Declaration,  had 
said  that  it  should  be  distinctly  announced  to 


9fi  THE  MONROE  DOCTRINE 

the  world  as  our  settled  policy,  that  "  no  fu- 
ture European  colony  or  dominion  shall,  with 
our  consent,  be  planted  or  established  on  any 
part  of  the  American  continent."  On  this 
occasion,  in  1848,  in  his  message  on  the  sub- 
ject of  Yucatan,  he  further  declared  that  "we 
could  not  consent  to  a  transfer  of  this  dominion 
and  sovereignty,  either  to  Spain,  Great  Britain, 
or  any  other  European  power;  ...  it  would 
be  dangerous  to  our  peace  and  security  if  it 
should  become  a  colony  of  any  European 
nation." 

The  attempt  to  plant  an  Austro-French  em- 
pire in  Mexico  is  so  recent  as  to  need  little 
explanation.  It  was  a  conception  of  the  French 
emperor,  which  he  hoped  to  execute  during 
our  civil  war,  and  by  its  success  not  only  to 
obtain  commercial  advantages,  but  to  discredit 
the  republican  system  in  America  and  break 
its  prestige  in  Europe.  It  furnished  an  occa- 
sion to  manifest  again,  and  in  a  practical  way, 
the  adhesion  of  our  government  to  the  prin- 
ciples announced  forty  years  previously.  The 
representations  of  our  government  to  both 
France  and  Austria  were  explicit,  and,  after 
the  spring  of  1865,  very  resolute  in  their  tone 
toward  the  imperial  cabinet  at  Paris.  In  fact, 
the  French-American  relations  became  at  one 
time  very  delicate  ;  we  had  an  army  of  obser- 
vation on  the  Mexican  frontier,  and  the  sec- 


THE   MONROE   DOCTRINE  259 

end  in  rank  of  our  army  ofHcers  was  ordered 
to  the  side  of  President  Juarez  in  Mexico.  A 
direct  engagement  was  finally  made  by  the 
French  government  to  the  American  for  the 
definitive  withdrawal  of  the  French  troops  in 
a  limited  time.  The  emperor  promised  for  the 
future  non-interference  in  Mexican  affairs. 
That  sad  chapter  of  the  history  of  European 
intervention  in  America  presents  one  relief  of 
color  to  an  otherwise  melancholy  picture.  It 
informed  the  governments  of  Europe  how  im- 
possible it  is  for  them  to  govern  Americans, 
and  how  impracticable  it  is  to  extend  their 
system  to  the  New  World.  The  attempt  will 
not  probably  be  repeated,  except  possibly  for 
colonization  in  smaller  territories  or  isolated 
possessions. 

It  may  be  very  positively  affirmed  that  the 
underlying  motive  of  the  non-colonization  prin- 
ciple was  and  is  the  danger  which  European 
dominions  in  America  offer  to  our  material 
interests,  both  in  peace  and  in  war.  It  means  a 
flanking  position,  a  military  and  naval  rendez- 
vous in  time  of  war,  and  an  exclusive  commer- 
cial position  in  time  of  peace.  It  invites  the 
extension  of  purely  European  wars  to  Ameri- 
can coasts  and  territories.  Rights  of  commerce 
and  navigation,  often  questioned,  are  referred 
to  a  distant  government  for  settlement.  Such 
questions,  arising  on  one  continent  and  re- 


26a  THE  MONROE   DOCTRINE 

ferred  to  another  and  distant  continent  for  ad- 
justment, always  find  the  European  tribunal 
of  appeal  to  be  dilatory,  slowly  informed,  and 
hesitating  in  action.  Justice,  halting  and  reluc- 
tant, moves  with  slow  steps  across  the  seas. 

It  was  largely,  if  not  chiefly,  to  avoid  these 
dangers  that  President  Adams  advised  the  par- 
ticipation of  the  United  States  in  the  Panama 
Congress.  In  his  message  of  March,  1826, 
speaking  of  the  advantages  we  derived  from 
independent  American  states,  he  says :  "  The 
United  States  enjoy  the  right  of  commercial 
intercourse  with  every  part  of  their  possessions. 
To  attempt  the  establishment  of  a  colony  in 
those  possessions  would  be  to  usurp,  to  the 
exclusion  of  others,  a  commercial  intercourse 
which  was  the  common  possession  of  all.  It 
could  not  be  done  without  encroaching  upon 
existing  rights  of  the  United  States."  He  fur- 
ther declares  that  among  the  subjects  of  con- 
sultation proposed  at  Panama  was  "  the  means 
of  making  effectual  the  assertion  of  that  prin- 
ciple ; "  and  he  looked  for  mutual  pledges,  each 
nation  for  itself,  "  to  permit  no  colonial  lodg- 
ment, or  establishment  of  European  jurisdic- 
tion, upon  its  own  soil."  That  policy  had  been 
urged  also  upon  Mexico,  in  a  separate  corre- 
spondence conducted  by  Mr.  Clay  as  Secretary 
of  State.  It  was  adopted  by  the  four  states 
represented  at  Panama. 


THE   MONROE   DOCTRINE  261 

The  continuity  and  uniformity  of  our  ra- 
tional adherence  to  the  Monroe  Doctrine, 
irrespective  of  political  parties,  and  the  inter- 
national publicity  of  our  adherence  to  it,  are 
fully  shown  by  reference  to  the  public  messages 
of  successive  presidents  addressed  to  the  Na- 
tional Congress. 

President  Polk  in  his  first  annual  message 
(1845)  alludes  to  the  fact  that  in  some  of  the 
countries  of  Europe  it  had  been  proposed  to 
extend  the  doctrine  of  the  "  Balance  of  Power  " 
to  this  continent,  in  order  to  check  the  rapidly 
growing  preponderance  of  the  United  States. 
He  adds  this  warning : . .  .  "  The  United  States, 
sincerely  desirous  of  preserving  relations  of 
good  understanding  with  all  nations,  cannot 
in  silence  permit  any  European  interference 
on  the  North  American  continent ;  and  should 
any  such  interference  be  attempted  will  be 
ready  to  resist  it  at  any  and  all  hazards." 

Again,  in  his  message  of  1847  he  says  the 
Monroe  principle  that  "  no  foreign  power  may 
with  our  consent  be  permitted  to  plant  or  estab- 
lish any  new  colony  or  dominion  in  any  part 
of  the  North  American  continent  must  be 
maintained." 

In  a  special  message  (1847)  relating  to  Yuca- 
tan he  reaffirms  the  Monroe  principle,  and 
declares  that  "we  could  not  consent  to  a  trans- 
fer of  this  dominion  and  sovereignty  either  to 


262  THE   MONROE   DOCTRINE 

Spain,  Great  Britain,  or  any  other  European 
power." 

President  Buchanan,  in  his  second  annual 
message  (1858),  while  discussing  the  disordered 
condition  of  Mexico,  says :  "  It  is  a  duty  which 
we  owe  to  ourselves  to  protect  the  integrity  of 
its  territory  against  the  hostile  interference  of 
any  other  power.  Our  geographical  position, 
our  direct  interest  in  all  that  concerns  Mexico, 
and  our  well-settled  policy  in  regard  to  the 
North  American  continent  render  this  an  in- 
dispensable duty."  Again,  in  i860,  he  admits 
the  obligation  of  resisting,  "even  by  force 
should  this  become  necessary,  any  attempt  by 
those  [European]  governments  to  deprive  our 
neighboring  republic  of  portions  of  her  terri- 
tory,—  a  duty  from  which  we  could  not  shrink 
without  abandoning  the  traditional  and  estab- 
lished policy  of  the  American  people." 

President  Grant,  in  a  special  message  to 
Congress  (1870),  confirmed  and  even  extended 
the  principle  of  1823.  "  The  doctrine  promul- 
gated by  President  Monroe  has  been  adhered 
to  by  all  political  parties ;  and  I  now  deem  it 
proper  to  assert  the  equally  important  princi- 
ple that  hereafter  no  territory  on  this  continent 
shall  be  regarded  as  subject  to  transfer  to  a 
European  power." 

In  a  special  message  (i 871)  he  declared  his 
opinion  "  that  we  should  not  permit  any  inde- 


THE  MONROE   DOCTRINE  263 

pendent  government  within  the  limits  of  North 
America  to  pass  from  the  condition  of  inde- 
pendence to  one  of  ownership  or  protection 
under  a  European  power." 

In  his  annual  message  of  1895  President 
Cleveland  advised  Congress  that  in  July  of  that 
year  a  communication  had  been  sent  by  our 
government  to  London  for  the  information  of 
the  British  government  in  respect  to  its  bound- 
ary dispute  with  Venezuela.  The  purport  of 
that  despatch  he  defined  as  follows :  "  The 
general  conclusions  therein  reached  and  for- 
mulated are  in  substance  that  the  traditional 
and  established  policy  of  this  government  is 
firmly  opposed  to  a  forcible  increase  by  any 
European  power  of  its  territorial  possessions 
on  this  continent ;  .  .  .  that  the  United  States 
is  bound  to  protest  against  the  enlargement 
of  the  area  of  British  Guiana  in  derogation  of 
the  rights  and  against  the  will  of  Venezuela." 
And  an  explicit  answer  was  desired  to  the  ques- 
tion whether  England  will  submit  her  claim  to 
that  territory  to  a  free  arbitration. 

The  British  government  denied  the  appli- 
cability of  the  Monroe  Declaration  to  the 
Venezuelan  boundary  question.  The  Presi- 
dent sent  a  special  message  to  Congress  in 
December  1895,  in  which  he  maintained  that 
it  was  so  applicable.  "  If  a  European  power 
by  an  extension  of  its  boundary  takes  posses- 


264  THE   MONROE   DOCTRINE 

sion  of  the  territory  of  one  of  our  neighboring 
republics  against  its  will  and  in  derogation  of 
its  rights,  it  is  difficult  to  see  why  to  that  ex- 
tent such  European  power  does  not  thereby 
attempt  to  extend  its  system  of  government  to 
that  portion  of  this  continent  which  is  thus 
taken.  This  is  the  precise  action  which  Presi- 
dent Monroe  declared  to  be  dangerous  to  our 
peace  and  safety.  It  can  make  no  difference 
whether  the  European  system  is  extended  by 
an  advance  of  frontiers  or  otherwise." 

The  United  States  delegates  to  The  Hague 
Conference  of  1899  added  a  signatory  declara- 
tion  and  notice  to  all  the  powers  there  repre- 
sented as  follows :  — 

"  Nothing  contained  in  this  convention  shall 
be  so  construed  as  to  require  the  United 
States  of  America  to  depart  from  its  tradi- 
tional policy  of  not  intruding  upon,  interfering 
with,  or  entangling  itself  in  the  political  ques- 
tions or  policy  or  internal  administration  of 
any  foreign  state ;  nor  shall  anything  contained 
in  the  said  convention  be  construed  to  imply  a 
relinquishment  by  the  United  States  of  Amer- 
ica of  its  traditional  attitude  toward  purely 
American  questions." 

Although  the  lucidity  of  this  declaration 
might  have  been  improved,  its  meaning  was 
well  understood  by  the  international  assem- 
bly ;  and  it  is  well  worthy  of  remembrance  as 


THE  MONROE   DOCTRINE  265 

the  first  formal  and  direct  notice  of  our  atti- 
tude on  the  Monroe  Doctrine  to  an  assembly 
of  the  civilized  governments  of  the  world.  As 
such  it  was  quoted  and  indorsed  by  President 
McKinley  in  his  annual  message  of  1899. 

President  Roosevelt  in  his  annual  message 
of  1 90 1  observed  that  the  Peace  Conference 
at  The  Hague  "  acquiesced  in  our  statement  of 
the  Monroe  Doctrine  as  compatible  with  the 
purposes  and  aims  of  the  conference."  He 
says  also,  "  The  Monroe  Doctrine  should  be 
the  cardinal  feature  of  the  foreign  policy  of  all 
the  nations  of  the  two  Americas,  as  it  is  of  the 
United  States."  Just  seventy-eight  years  have 
passed  since  President  Monroe  in  his  annual 
message  announced  that  "  the  American  con- 
tinents are  henceforth  not  to  be  considered  as 
subjects  for  future  colonization  by  any  Eu- 
ropean power."  In  other  words,  the  MonroeN 
Doctrine  is  a  declaration  that  there  must  be  / 
no  territorial  aggrandizement  by  any  non- 
American  power  at  the  expense  of  any  Ameri- 
can power  on  American  soil.  It  is  in  no  wise 
intended  as  hostile  to  any  nation  in  the  Old 
World.  Still  less  is  it  intended  to  give  cover 
to  any  aggression  by  one  New  World  power 
at  the  expense  of  any  other.  It  is  simply  a  step, 
and  a  long  step,  toward  assuring  the  universal 
peace  of  the  world  by  securing  the  possibility 
of  permanent  peace  on  this  hemisphere.  'J 


266  THE   MONROE   DOCTRINE 

"  During  the  past  century  other  influences 
have  established  the  permanence  and  inde- 
pendence of  the  smaller  states  of  Europe. 
Through  the  Monroe  Doctrine  we  hope  to  be 
able  to  safeguard  like  independence  and  secure 
like  permanence  for  the  lesser  among  the  New 
World  nations.  .  .  .  We  do  not  ask  under  this 
doctrine  for  any  exclusive  commercial  dealings 
with  any  other  American  state.  We  do  not 
guarantee  any  state  against  punishment  if  it 
misconducts  itself,  provided  that  punishment 
does  not  take  form  of  the  acquisition  of  ter- 
ritory by  any  non-American  power.  .  .  .  Our 
people  intend  to  abide  by  the  Monroe  Doc- 
trine and  to  insist  upon  it  as  the  one  sure 
means  of  securing  the  peace  of  the  western 
hemisphere." 

It  should  be  noted  for  remembrance  in  this 
connection  that  in  1902,  before  Great  Britain 
and  Germany  sent  their  fleets  to  coerce  Vene- 
zuela into  a  redress  of  grievances,  both  these 
great  powers  gave  formal  assurances  to  the 
United  States  government  that  there  was  no 
intention  on  their  part  to  violate  the  principles 
of  the  Monroe  Doctrine. 

y/Dut,  leaving  the  domain  of  authority  and 
/precedent,  let  us  examine  the  Doctrine  upon 
I  the  grounds  of  reason. 

What  argument  exists,  on  our  part,  to  sup- 
port an  objection  to  Central  or  South  Ameri- 


f 


/ 


THE  MONROE   DOCTRINE  267 

can  colonization  by  Europe  under  claim  of 
"  prior  discovery,"  which  does  not  equally  mili- 
tate against  colonization  effected  by  war,  or 
secured  by  a  cession  of  territory?  Our  own 
territorial  rights  being  untouched,  in  what  way 
are  we  more  injured  by  the  former  than  by  the 
latter  ?  In  either  case  it  excludes  or  constrains 
our  commercial  interests  as  secured  by  exist- 
ing treaties.  In  either  case  it  creates  for  us 
a  new  and  possibly  dangerous  neighbor,  and 
new  relations.  If  secured  by  one  of  the  naval 
powers,  it  exposes  us  to  a  new  military  danger. 
If  accomplished  by  a  great  power,  it  compels 
the  increase  of  our  own  military  or  naval  pre- 
parations to  preserve  our  equality  in  the  event 
of  war.  If  near  our  great  lines  of  commerce,  it 
becomes  a  standing  menace  to  our  commercial 
relations.  It  touches  every  national  interest.  It 
is  self-evident  that  we  could  not  regard  such 
an  establishment,  in  whatever  way  of  peace  or 
war  effected,  "  with  indifference,"  as  the  diplo- 
matists put  it.  It  would,  and  it  ought  to,  cause 
serious  inquietude  to  our  government.  Need 
we  recall  again  the  Nicaraguan  dispute,  which 
brought  us  to  the  verge  of  war  ?  Do  we  not 
remember  the  squadron  despatched  to  the  An- 
tilles by  the  British  government,  when  they 
believed  France  was  seeking  to  acquire  Cuba 
by  cession,  and  Mr.  Canning's  protest  against 
that  cession?   Vet  that  could  affect  England 


268  THE   MONROE   DOCTRINE 

in  no  sense  equal  to  the  effect  upon  us  of  the 
acquisition  by  a  great  European  power  of 
Cuba,  or  of  any  other  strong  position,  insular 
or  continental,  commanding  either  side  of  Cen- 
tral America,  or  the  chief  lines  of  our  com- 
mercial routes  along  this  or  the  southern 
continent. 

In  another  respect  any  new  European  ac- 
quisition on  this  continent  would  touch  very 
seriously  our  important  interests.  Delegated 
authority,  exercised  across  distant  seas,  is  the 
occasion  of  frequent  misunderstandings  and 
commercial  embarrassments.  The  reparation 
or  remedy  is  referred  to  a  distant  government, 
and  is  tediously  obtained,  if  obtained  at  all. 
A  supreme  government  in  immediate  contact 
obviates  this  danger  of  disturbance  to  com- 
merce and  to  amicable  relations.  Canada  and 
Cuba  have  repeatedly  illustrated,  and  amply, 
the  justice  of  this  ground  of  objection  to  fur- 
ther colonial  establishments  in  this  hemisphere. 
It  is  not  long  since  one  of  these  questions  in 
connection  with  Cuba  cost  us  four  millions  in 
naval  preparations  to  secure  justice  for  wrongs 
there  perpetrated.  Either  great  or  petty  causes 
of  irritation  are  continually  arising  with  the 
colonial  dominions  on  the  north  of  us.  Their 
semi-independent  condition  encourages  a  free- 
dom of  action  sometimes  in  conflict  with  our 
rights  and  interests,  but  without  the  authority, 


THE   MONROE   DOCTRINE  269 

however  willingly  disposed,  to  assure  us  relief 
or  remedy  by  treaty.  Our  future  relations  with 
this  dominion  will  cause  —  already  cause  — 
anxiety  to  thoughtful  American  statesmanship, 
from  which  there  now  appears  no  certain  issue, 
except  in  its  independence.  Our  increasing 
settlements  and  interests  on  the  Northern  Pa- 
cific coast  bring  British  Columbia  still  more 
forcibly  within  the  scope  of  these  considera- 
tions. 

The  European  critics  of  the  Monroe  Doc- 
trine say  that  it  is  not  recognized  as  a  part 
of  the  code  of  international  law,  and  does  not 
therefore  bind  other  nations,  and  is  not  enti- 
tled to  observance  by  them.  Was  the  doctrine 
of  the  "  Balance  of  Power  "  a  part  of  that  code  ? 
Was  it  declared  in  that  code  that  Russia  should 
not  seize  Constantinople.?  or  that  France 
should  not  seize  and  appropriate  to  her  own 
trade  the  great  ports  of  China  ?  Would  Ger- 
many for  that  reason  permit  France  or  Eng- 
land to  take  permanent  possession  of  the  port 
of  Rotterdam  or  of  Antwerp?  or  acquire  a 
strong  military  or  naval  position  on  the  coast 
of  Denmark.?  Would  the  European  powers 
quietly  permit  the  United  States,  because  of 
the  silence  of  the  international  code  on  the 
subject,  to  acquire  Sicily,  and  establish  a  repub- 
lican dependent  government  there  ?  "  Spheres 
of  influence"  are  not  recognized  by  interna- 


270  THE   MONROE   DOCTRINE 

tional  law,  but  they  are  respected  by  the  com- 
mon sense  of  nations ;  and  this  recognition 
promotes  the  peace  of  the  world. 

We  must  maintain  the  Doctrine,  not  merely 
the  Declaration,  of  President  Monroe's  admin- 
istration, in  the  light  of  later  experience  and 
of  wider  development  of  interests.  The  time  is 
most  favorable.  Our  foreign  relations  are  uni- 
versally amicable.  Our  domestic  prosperity 
and  contentment  free  the  government  from 
anxious  interior  cares.  Our  finances  are  well 
ordered  and  satisfactory.  We  can  freely  turn 
our  eyes  abroad,  not  for  aggressive  action,  but 
for  peaceful  and  secure  development.  We  can 
tranquilly  determine  our  policy  upon  the  ques- 
tions under  review,  and  inquire  whether  we 
ought  not  to  advance  from  the  earlier  Declara- 
tion, made  by  the  President  eighty  years  ago, 
when  we  had  no  commercial  Pacific  coast,  to 
a  position  and  to  action  more  appropriate  to 
our  present  condition  and  interests,  and  to  the 
ambitions  of  other  governments.  For  our  own 
territory,  or  for  our  political  system  —  defended 
by  eighty  millions  of  people  devoted  to  it,  and 
ready  to  spring  to  arms  for  its  defence — we  fear 
nothing.  The  sentiment  of  monarchy  toward 
popular  republics  has  radically  changed.  Lib- 
erty has  advanced  eastward  with  long  strides, 
while  despotism  has  receded  to  the  bor- 
ders of  Asia.    History,  authority,  reason,  and 


THE    MONROE   DOCTRINE  271 

existing  conditions  amply  justify  the  formal 
declaration  of  the  principle  foreshadowed  by 
Mr.  Monroe's  advisers.  The  United  States 
could  not  witness  with  indifference  the  estab- 
lishment on  these  American  continents,  or  on 
any  island  of  their  borders,  of  any  new  Eu- 
ropean military  or  naval  position,  in  whatever 
way  acquired ;  nor  of  any  new  colony,  under 
European  jurisdiction  ;  nor  the  transfer  to  any 
other  European  naval  power  of  any  existing 
American  colonial  dependency. 

It  is  not  necessary  to  disclose  here  all  the 
reasons  which  urge  us  to  the  early  and  reso- 
lute adoption  of  this  principle,  and  to  the 
preparation  of  all  needful  means  for  its  enforce- 
ment. If  not  now  formulated  and  declared,  it 
should  be  accepted  by  our  statesmen,  not  as  a 
topic  for  academical  discussion  or  wild  oratory, 
but  as  a  basis  for  firm  and  decisive  action,  and 
in  full  view  of  its  possible  consequences.  We 
have  not  failed  to  observe  in  the  history  of 
British- American  relations  a  singular  alterna- 
tion of  equitable  and  aggressive  dispositions 
toward  the  United  States  —  the  latter,  unfor- 
tunately, manifested  in  times  of  our  trouble  or 
weakness.  Germany  and  France  are  strong 
rival  commercial  and  aggressive  powers.  Both 
have  sought  outlying  positions  of  future  ad- 
vantage for  commercial  and  military  purposes. 
He  is  greatly  mistaken  who  supposes  that  the 


272  THE  MONROE   DOCTRINE 

rejection  of  the  imperial  dynasty  by  France  has 
changed  in  this  respect  the  spirit  of  the  French 
governing  classes.  The  sentiment  which  still 
dominates  there  is  love  of  glory,  and  glory 
in  foreign  acquisitions :  witness  her  persistent 
campaigns  in  Africa.  The  French  nation  has 
no  permanent  alliances :  witness  the  discordant 
clamor  for  friendship  to-day  with  England,  yes- 
terday with  Austria,  now  with  Russia,  then  with 
Italy,  or  with  the  Sultan.  Her  friendships  re- 
main so  long  as  they  are  tributary  to  her  inter- 
ests or  to  her  glory.  The  simple  fact  of  her 
adoption  of  republican  institutions  has  in  no 
way  changed  her  policy  of  territorial  and  com- 
mercial extension  and  acquisition.  While  Amer- 
ica ardently  desires  the  continuance  of  the 
present  amicable  relations  with  all  these  coun- 
tries, yet,  reviewing  the  last  fifty  years,  we 
realize  the  dangers  of  a  changed  policy  arising 
from  a  change  of  monarchs  or  of  ministries. 

Our  American  Republic  has  never  cast  a 
covetous  eye  upon  any  part  of  European  terri- 
tory, or  of  the  neighboring  African  continent, 
nor  upon  any  island  off  their  coasts.  Its  policy 
has  never  in  the  course  of  its  history  in- 
dicated any  desire  to  interfere  with  the  terri- 
torial distribution  of  Europe,  or  with  its  forms 
of  government,  or  with  the  internal  affairs  of 
its  various  nations.  On  the  contrary,  we  have 
repeatedly  affirmed  our  policy  of  absolute  non- 


THE   MONROE   DOCTRINE  273 

interference  and  non-acquisition  of  European  or 
African  territory.  Even  the  vast  discoveries  of 
Central  Africa,  made  by  Stanley  under  the 
American  flag,  did  not  tempt  the  Republic  to 
swerve  from  her  principle  of  non-acquisition  of 
transatlantic  domains.  In  return,  America  de- 
mands the  like  non-intervention  by  European 
powers  in  the  affairs  of  the  American  conti- 
nents, and  the  like  non-acquisition  of  American 
territorial  or  insular  possessions.  This  recipro- 
cal policy  will  not  only  contribute  to  the  mutual 
prosperity  of  nations,  but  tend  strongly  to  the 
preservation  of  international  peace,  which  is 
now  the  common  aspiration  of  all  Christian 
nations. 


BUctroty^d  and  printed -By  H.  O.  Houghton  A»  Co. 
C»mbrid£*,  Matt.,  U.S.A. 


4/u*t 


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